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/ 


THE 


MUNICIPAL CODE 


L]^ 


OF 


y-h 


OHIO; 


CONTAINING THE STATUTES RELATING TO 


CITIES AND INCORPORATED VILLAGES. 

WITH NOTES OF 


LEGISLATION AND JUDICIAL DECISIONS. 




Bv J. W. OKEY and S. A. MILLER. 


CINCINNATI: 

MIAMI PRINTING AND PUBLISHING COMPANY. 
1869. 







Entered, according to the Act of Congress, in the year 1869, 

By J. W. OKEY and S. A. MILLER, 

In the Clerk’s Office of the District Court of the United States for the 
Southern District of Ohio. 






PREFACE. 


This wotIc is a re-publication of the Act passed May 7, 1869, 
by the General Assembly of Ohio, “to provide for the organi¬ 
zation and government of Municipal Corporations,” and other 
statutes relating to the same matter. . Notes of legislation have 
been added, to facilitate comparison with the former statutes; 
and in the notes of decisions, appended to various provisions, we 
have endeavored to show the construction which has been placed 
by the courts on the same or similar language in other statutes. 

We have not undertaken to re-publish all the statutes and parts 
of statutes, whether local in character or otherwise, that in any 
way relate to the subject; but we have included everything of a 
general character that can be useful in a work like this. Nor 
have we attempted to illustrate the text by any general collection 
of the numerous cases in this country and England that might be 
found to bear upon it; but we have relied mainly on the cases in 
our own courts, and, we think, with good reason. If we had 
included in the work all the statute law of the state in any way 
relating to the subject, and all the decisions that could in any way 
illustrate it, we would have prolonged our labors a year or more, 
and swelled our work to a large and expensive volume. 

We have labored with diligence to prepare a work which will 
be of practical importance to municipal officers, judges, lawyers, 
and others who may have occasion to examine the law relating 
to cities and villages; and if we have succeeded in the undertak¬ 
ing, we have accomplished all that was attempted. In the inves¬ 
tigation of important questions before the courts, it will be de¬ 
sirable to look to other sources of information ; but the gentlemen 
who are called to make such investigations, are so well informed 

(iii) 



[iv] 

on the subject, that it is needless to even indicate those sources. 
The digests and treatises, as well as the cases, containing the 
information, are numerous; but a work devoted to municipal 
corporations, so thoroughly done as to be generally useful through¬ 
out the country, though greatly needed, remains to be written. 
Even if we had such a treatise, the practical value of this work 
for city and village officers, and all who desire to know the pecu¬ 
liar provisions of our municipal code, would not be in any way 
impaired. 

By the Constitution of 1802, the legislative authority of this 
state was vested in the General Assembly; and that included 
power to pass all laws that belonged to and were in the nature of 
the legislative power, that the object and purposes of the state 
government required, except as that power was restrained or qual¬ 
ified by other parts of the instrument. There was no special 
provision as to laws for the government of municipal corporations. 
The authority to legislate with respect to them rested on the same 
general provision. But in the Constitution of 1851, while the 
same general provision is retained, it is required that the General 
Assembly shall provide for the organization of cities and incor¬ 
porated villages b y general laws; and it is enjoined upon that body 
to restrict their power of taxation, assessment, borrowing money, 
contracting debts and loaning their credit, so as to prevent its 
abuse. 

In 1852 an act on this subject, containing one hundred and 
eleven sections, was passed by the General Assembly. That was 
the work of an able lawyer, who devoted much time to its prep¬ 
aration, and an effort was made to comply with the constitutional 
provision that the law must be “ general.” But the statute was 
an experiment, and the wants of the public, real or supposed, 
secured so many amendments and additions during sixteen ses¬ 
sions of the General Assembly, that the new matter greatly ex¬ 
ceeded the old, although the larger part of the old law was really 
unchanged. And the result was, that the symmetry which char¬ 
acterized the act of 1852, was to a considerable extent destroyed. 
Among the cases illustrating this fact is Thomas v. Ashland , 12 
O. S. 124, in which Gholson, J., took occasion to make some 


[v] 

remarks in that connection. u The governing all cities and vil¬ 
lages,said he, “under one general law, was a new experiment, 
supposed to be required by the present constitution. It was to 
be expected that in the working of the experiment, omissions, if 
not mistakes, would be discovered, to be corrected from time to 
time by additional legislation, and the addition of a new feature 
in one part of the system would quite probably leave some other 
part defective. It will be a work of care and time to perfect an 
orderly and harmonious system.” 

The laws being in this great confusion, so that it was always 
difficult, and sometimes nearly impossible, to ascertain their mean¬ 
ing, the Senate, in the last General Assembly, appointed a com¬ 
mittee on the subject, consisting of Senators Scribner, Everett 
and Linn, who with great labor simplified and arranged the vari¬ 
ous statutes, and reduced them to one bill, which, after slight 
amendment, was passed into a law, and now forms the principal 
part of this work — the longest, and in many respects the most 
important, statute ever passed in this state. Changes will be 
necessary, perhaps, to perfect it, and render it entirely satisfactory 
as a code for the government of the cities and villages of Ohio; 
but we see no reason to doubt that the act will be as permanent 
in its character, and as little subject to change, as the Code of 
Civil Procedure, or any of our more important statutes. 

We have felt it to be our duty to include in the notes all the 
Ohio cases that may in any degree aid in the construction of the 
present statutes; but in many instances the provision of the stat¬ 
ute to which a construction was given, differs in some important 
particulars from the provision* to which the note is appended, and 
hence care will be required to avoid being misled as to the extent 
of the application such cases really have to the text. 

With some hesitation, we have included notes of a number of 
manuscript cases, not readily accessible to persons elsewhere who 
may have occasion to consult this work; but some of these cases 
are important, and all of them can be readily seen in this city, 
where, we may remark, a large number of copies of this work 
will be distributed; and, moreover, while such cases, thus briefly 
digested, will not be considered as authority, they will doubtless 


be very generally regarded as aids of some importance in the con¬ 
struction of the Municipal Code. 

The collection of cases as to the powers, duties and liabilities 
of cities and villages with respect to the istreets, will be found 
full, and we trust satisfactory. And the same is true of the power 
of making assessments on the owners of property for improve¬ 
ments beneficial to such owner — which power is shown to be 
firmly established; and, doubtless, it is frequently just in its appli¬ 
cation, but often much abused. We regret that we have not 
been able to present a fuller collection of cases in which the 
power of taxation, now attracting much public attention, has 
been in any way restricted or qualified. 

We must confess that we have done the best we could, in the 
limited time we were enabled to devote to our humble work, to 
make it all that we promised — a practical work for all who may 
have occasion to examine the laws of this state, relating to cities 
and incorporated villages. But we can not conclude without in¬ 
voking an indulgent consideration of whatever errors and mistakes 
others may discover in this edition of the Municipal Code of 
Ohio. 


Cincinnati, Sept., 1869. 


J. W. OKEY, 

S. A. MILLER. 


STATUTES IN THIS VOLUME. 


PAGE. 

Municipal Code . vn 

Town Plats—Recording, Etc. 201 

Town Plats—Vacating, Etc.207, 210 

Towns—Establishing and Vacating Streets. 209 

Town Lots—Numbering. 211 

Town Halls. 212 

The Poor. 214 

Railroads—Certain Cities may Build. 215 

Metropolitan Police. 220 

Second-hand Furniture, etc.,. 234 

Appendix. 235 


Note. —A number of the unreported decisions of the judges 
in Hamilton county are digested in this volume. In some cases 
the language, or what purports to be the language of the judge 
delivering the opinion, is given. It is due to those judges to say, 
that the work was prepared amid professional and other cares, 
and that it was not always practicable to submit the manuscript, 
selected or abstracted from newspaper and other reports, to 
them for revision. It is hoped that no injustice has been done in 
substance, however it may be as to form. 





















MUNICIPAL CODE, 


CONTENTS. 


Section. 

PRELIMINARY.—Existing Municipal Corporations. 1 

CHAPTER I.—Classification of Municipal Corporations. 2-8 

CHAPTER II.—Creation of Incorporated Villages—General and 

Special.. *. 9-28 

CHAPTER III.—Of the manner Incorporated Villages for 
Special Purposes may be advanced to the grade of 

Incorporated Villages. 29-39 

CHAPTER IV.—Of the manner in which Incorporated Villages 
may be advanced to Cities of the Second Class, and Cities 
of the Second Class advanced to Cities of the First Class.. 40-46 

CHAPTER V.—Incorporated Villages for Special Purposes. 47-58 

CHAPTER VT.—Officers of Municipal Corporations. 59-69 

CHAPTER VII—Election of Officers. 70-78 

CHAPTER VIII—Qualifications, Oath and Bond of Officers.... 79-81 

CHAPTER IX—Council of the Corporation. 82-96 

CHAPTER X.—Ordinances, Resolutions and By-Laws—How 

adopted and passed. 97-104 

CHAPTER XI.—Ordinances—How enforced.%.105-113 

CHAPTER XII.—Powers and Duties of Municipal Officers.114-165 

The Mayor.*..114-127 

The Clerk.128-137 

The Auditor. 138-139 

The Marshal.140-144 

Chief of Police. 145-150 

The Treasurer. 151-156 

The Solicitor.157-163 

Street Commissioner, Fire Engineer, Civil Engineer and 

Superintendent of Markets.164-165 

CHAPTER XIII.—Jurisdiction and Powers of Police Courts... .166-193 

Police Judge.166-181 

Clerk of Police Court. 182-190 

Prosecuting Attorney of Police Court.191-193 

CHAPTER XIV.—The Mayor’s Court.194-198 

[vii] 



























[viii] 

Section. 


CHAPTER XV.—General Powers of Municipal Corporations— 199 

CHAPTER XVI.—'Vagrants, Criminals, and Suspicious Charac¬ 
ters . 200-204 

CHAPTER XVII.—Police.205-214 

CHAPTER XVIII—Corporation Prison.215-218 

CHAPTER XIX.—Houses of Refuge and Correction.219-270 

CHAPTER XX.—Work-Houses.271-282 

CHAPTER XXI.—Hospitals.283-297 

CHAPTER XXII.—Infirmaries.298-302 

CHAPTER XXIII.—Board of Health.303-325 

CHAPTER XXIV.—Fire Department.326-333 

CHAPTER XXV.—Water-Works.334-360 

CHAPTER XXVI.—Public Cemeteries and Burial Grounds.361-396 

CHAPTER XXVII.—Public Grounds and Parks.397-400 

CHAPTER XXVIII.—Public Halls.401-404 

CHAPTER XXIX.—Division into Wards.405-410 

CHAPTER XXX.—Street Railroads. 411^14 

CHAPTER XXXI.—Gas Companies.415-427 

CHAPTER XXXII.—Lighting Bridges and Railways.428-434 

CHAPTER XXXIII.—Sprinkling Streets. 435-438 

CHAPTER XXXIV.—Control of Streets, Bridges and Vehicles..439-441 

CHAPTER XXXV.—Wharves, Docks and Harbor Masters.442-445 

CHAPTER XXXVI.—Ferries. 446 

CHAPTER XXXVII.—Licensing Shows, Auctioneers, etc.447-448 

CHAPTER XXXVIII.—Pawnbrokers.449-451 

CHAPTER XXXIX.—Filling up Lots and Removal of offensive 

Substances.452-454 

CHAPTER XL.—Markets. .455-458 

CHAPTER XLI.—Inspectors of Provisions and other Articles. .459-474 
CHAPTER XLII.—Identity of Corporation and Township Lines 

—Change of Township Boundaries. .475-483 

CHAPTER XL1II.—Two Days’ Labor on the Streets—Road Tax.484-490 

CHAPTER XLIV.—Vacating Street or Alley.491-493 

CHAPTER XLV.—Damages for Excavations.494-495 

CHAPTER XLVI.—Board of Improvements...496-506 

CHAPTER XLVII.—Appropriation of Private Property by 

Municipal Corporations for public uses.507-538 

CHAPTER XL VIII.—General Rules relative to Improvements 

and Special Assessments... 539-562 

CHAPTER XLIX.—Damages and Assessments for Public Im¬ 
provements... 563-601 

Notice of Proposed Improvement. 563 

Claims for Damages.564-575 

Special Assessments.576-590 

Sidewalks.591-596 

Turnpikes, Plank Roads and Water Courses.597-601 

CHAPTER L.—Sewers, Drains and Ditches.602-638 

CHAPTER LI.—Finance and Taxation.639-660 








































[ix] 

Section, 

CHAPTER LIL— 1 The power to Borrow Money and Issue Bonds. 661-G71 

CHAPTER LIII.—Sinking Fund.672-675 

CHAPTER LIY.—Lease or Sale of Corporate Property.67G-6I8 

CHAPTER LY.—Annexation of territory to a City or Incorpo¬ 
rated Village on the application of citizens residing 

thereon.679-889 

CHAPTER LVI.—Annexation on the application of the Corpo¬ 
ration.690-696 

CHAPTER LVII.—Annexation of one Municipal Corporation to 

another Municipal Corporation.697-705 

CHAPTER LVIII.—Surrender of Municipal Rights.706-717 

CHAPTER LIX.—Duties of State Officers and Right of Visita¬ 
tion.718-724 

CHAPTER LX.—Saying of Existing Rights.725-730 

CHAPTER LXL—Acts Repealed. 731 






































[ 11 ] 


AN ACT 

To provide for the Organization and Government of Municipal Cor¬ 
porations. 1 2 

Be it enacted by the General Assembly of the State of Ohio , 
as follows: 

PRELIMINARY PROVISION. 

. Section 1. Application to all municipal corporations. All mu¬ 
nicipal corporations in this state now existing, or which may here¬ 
after he created, shall he governed by the provisions of this act, and 
the territorial limits and wards of existing municipal corporations 
shall remain as they now are until changed in the manner herein pro¬ 
vided. 3 


CHAPTER I. 

CLASSIFICATION OF MUNICIPAL CORPORATIONS. 

Section. Section. 

2. Classification. G. Villages for special purposes. 

3. Cities of first class. 7. Population requisite for cities and vil- 

4. Cities of second class. lages. 

6. Villages. 8. Bodies politic and corporate. 

Sec. 2. Classification. Municipal corporations shall he divided 
into cities of the first class, cities of the second class, incorporated 
villages, and incorporated villages for special purposes. 3 

Sec. 3. Cities of the first class. All existing municipal corpora¬ 
tions, organized as cities of the first class, shall he deemed cities of 
the first class. 

Sec. 4. Cities of the second class. All existing municipal cor¬ 
porations, organized as cities of the second class, shall he deemed 
cities of the second class until advanced to the grade of cities of the 
first class, in the manner provided in this act. 

Sec. 5. Villages. All existing municipal corporations, organized 
as incorporated villages, shall be deemed incorporated villages until 
advanced to the grade of cities of the second class, in the manner pro¬ 
vided in this act. 

Sec. 6. Villages for special purposes. All existing municipal 


1 “ The General Assembly shall provide for the organization of cities and 
villages by general laws, and restrict their power of taxation, assessment, 
borrowing money, contracting debts, and loaning their credit, so as to 
prevent the abuse of such power.” Constitution of Ohio , Art. XIII, § 6. 

2 Municipal Act of 1852, § 1; 3 Curwen, ch. 1184. 

It is competent for the legislature to change, modify, enlarge, or re¬ 
strict the charter of municipal corporations, under proper limitations. 
In this respect there is a well settled distinction between private and 
public corporations. Marietta v. Fearing , 4 O. 427. 

3 Act of 1852, § 40. 






[ 12 ] 

corporations, organized as special road districts, shall be deemed in¬ 
corporated villages for special purposes until advanced to the grade of 
incorporated villages, in the manner provided in this act. 

Sec. 7. Population requisite for cities and villages. No city of 
the second class shall he advanced to the grade of a city of the first 
class until it shall have attained a population of twenty thousand. 
No incorporated village shall be advanced to the grade of a city of 
second class until it shall have attained a population of five thousand. 
No incorporated village for special purposes shall be advanced to the 
grade of an incorporated village until it shall have attained a popula¬ 
tion of five hundred; and no incorporated village shall hereafter be 
organized until the inhabitants to be embraced in it exceed in number 
one thousand. 1 

Sec. 8. Bodies politic and corporate. All municipal corpora¬ 
tions now organized and established, including special road districts, 
and all municipal corporations organized under the provisions of this 
act, shall be and they are hereby declared to be bodies politic and cor¬ 
porate, under the name and style of the city of-; the incorporated 

village of-; the village of-, incorporated for special purposes, 

as the case may be, and as such capable to sue and be sued, to con¬ 
tract and be contracted with, to acquire, hold and possess property, 
real and personal, and to haye a common seal, and*to change or alter 
the same at pleasure, and to exercise such other powers and have such 
other privileges as are conferred by this act. 2 


1 Under the act of 1852, § 41, the same population was requisite in the 
classification of cities. 

The requirement as to population for an incorporated village for spe¬ 
cial purposes, under this act, is that there shall be at least fifty qualified 
voters residing on the territory. Infra , § 14. 

The mode of ascertaining the population for the purpose of advance¬ 
ment, is provided in sections 35 and 42. 

The power to do indirectly that which can not be done directly,—that 
is, to secure the organization of an incorporated village with a popula¬ 
tion of only five hundred, by first organizing it as an incorporated village 
for special purposes,—was conferred by an amendment to the bill. The 
bill provided that the advancement should not be made until a popula¬ 
tion of one thousand was attained. 

2 Act of 1852, $ 18. 

“ In determining the powers of municipal corporations, it is right and 
proper to allow them the exercise of all powers expressly granted, and 
such others as may be necessary to carry the powers expressly granted 
into execution. Beyond this the court ought not to go, and should there 
be error in construing those powers, it is better to err in restricting than 
in extending them.” Hitchcock, J., in Collins v. Hatch , 18 O. 523; 5 O. S. 61. 

But a different rule of construction ought to prevail where a corpora¬ 
tion is endeavoring not to extend its powers to the injury of others, but 
sets up by way of defense to an action brought against it, that it has 
itself been guilty of usurpation of power. There, in cases of doubt, the 
power ought to be upheld. Haul of Chillicothe v. Chillicothe , 7 0.2 pt. 31. 

In the case of Morrill , City Solicitor , v. Cincinnati , the question of the 
power of the City Council to make contracts under which grounds were 
to be leased to the city for park and other purposes, was much considered 
by the Superior Court of Cincinnati, in General Term, and the authority 








[IB] 


CHAPTER II. 


CREATION OF INCORPORATED VILLAGES-GENERAL AND SPECIAL. 


Section. 

9. Organization of incorporated villages. 

10. Application therefor. 

11. Character of petition. 

12. Presentation, etc., of petition. 

13. Proceedings on petition. 

14. Duty of commissioners. • 

15. Transcript of proceedings. 

16. Duty of recorder. 

17. Transcripts to be certified, eto. 

IS. Corporation complete. 

19. Record thereof. 


Section. 

20. Application for injunction. 

21. Notification to recorder, etc. 

22. Recorder to transmit papers to clerk. 

23. Duty of court or judge, etc. 

24. First election of officers. 

25. Procedure when territory lies in two or 

more counties. 

26. The same. 

27. Jurisdiction of officers. 

28. Fees of officers. 


Sec. 9. Organization of incorporated villages. The inhabitants 
residing on any territory laid off into town or village lots, a plat of 
which has been made, acknowledged and recorded, and which territory 
is not adjoining any city or incorporated village, 1 may be organized 
into an incorporated village, or an incorporated village for special pur¬ 
poses, in the following manner : 

Sec. 10. Application therefor. Application for such purpose shall 
be made by petition, in writing, signed by not less than thirty of the 
legal voters of this state residing on such territory, addressed to the 
commissioners of the county in which such territory shall be located. 

Sec. 11. Character of petition. Such petition shall accurately 
describe the territory to be embraced in the proposed corporation, and 
may include adjacent territory not laid off into lots; it shall state the 
supposed number of inhabitants residing thereon, and the kind of 
corporation they desire should be established. It shall also contain 
the name or names of some person or persons authorized to act in be¬ 
half of the petitioners, as their agent or agents, in the premises, and 


maintained. 1869, MS. “This broad express grant of power,” said Taft, 
J., referring to section eighteen of the act of 1852, “ ‘ to acquire, hold, and 
possess property, real and personal,’ must be regarded as co-extensive 
with the legitimate purposes of the corporation. The Supreme Court of 
Ohio, in 10 O. S. 377, said of a similar provision in the act relating to rail¬ 
roads : ‘ It can only be limited in regard to the purposes for which the 
property is acquired.’ ” And the court held, that this general grant of 
power was not limited by implication by the creation of a Board of Trus¬ 
tees of the Water Works or a Board of Education, with special power of 
negotiating the purchase of premises for a reservoir or a school-house. 

Where there is no restraining clause in the charter of a municipal cor¬ 
poration, such corporation may dispose of any property which it has the 
right to acquire. And where the council is authorized to sell and transfer 
stock, as soon as it can be sold at par value, this authorizes a sale on credit. 
Newark v. Elliott , 5 O. S. 113. 

If a town corporation is invested with the usual powers conferred upon 
such bodies, and borrows money for the use of the town, such contract is 
binding upon the corporation, and it must repay, although no express 
power to borrow money be given in the charter. Bank of Ghillicothe v. 
Ghillicothe, eup. 

iThe provision, that the territory shall not adjoin any city or incor¬ 
porated village, seems not to have been made in the Act of 1852. 



[14] 

the name proposed for such corporation, and it shall he accompanied 
by an accurate map of the territory therein described. 1 

Sec. 12. Presentation , etcof petition. Such petition shall be 
presented to the board of commissioners at a regular session thereof, 
and when so presented, such board shall cause the same to be filed in 
the office of the county auditor, to be there kept subject to the inspection 
of any person or persons interested. The commissioners shall also, 
at the time of the filing of such petition, determine upon and communi¬ 
cate to the agent or agents of such petitioners, the time and place for 
the hearing thereof, which time shall be not less than sixty days after 
the date of such filing. Thereupon the said agent or agents shall im¬ 
mediately cause a notice, containing the substance of said petition, 
and stating the time and place where the same will be heard, to be 
published in some newspaper published and of general circulation in 
the county, for the period of six consecutive weeks, and also a copy 
of the said notice to be posted up in some conspicuous place within 
the limits of the proposed corporation not less than six weeks prior to 
the time fixed for the hearing of said petition. 2 

Sec. 13. Proceedings on petition. Every such hearing shall be 
public, and may be adjourned from time to time and from place to 
place, according to the discretion of the commissioners, and any per¬ 
son interested may appear, in person or by attorney, and contest the 
granting of the prayer of said petition, and affidavits in support of 
or against the prayer of the petition, which may be prepared and 
submitted, shall be examined by said commissioners, and they may, 
in their discretion, permit the agent or agents of the said petitioners 
to amend said petition or change the same, except that no amendment 
shall be permitted whereby territory not before embraced shall be 
added without appointing another time for hearing and requiring new 
notices to be given as above provided. 3 

Sec. 14. Duty of commissioners. If the commissioners, upon the 
hearing of the petition, shall find that it contains all the matters re¬ 
quired, and that its statements are true; that the name proposed for 
such corporation is appropriate; that the limits thereof have been ac¬ 
curately described, and that the same are not unreasonably large or 
small, and the map or plat thereof is accurately made ; that the per¬ 
sons whose names are subscribed thereto are legal voters residing on 
said territory, and shall be further satisfied that the said notice has 
been given by the said agent or agents as required, and, if the petition 
be for an incorporated village, that there is the requisite population 
for such corporation, or, if the petition be for an incorporated village 
for special purposes, that at least fifty qualified voters reside on said 
territory, and if, moreover, it shall be deemed right and proper, in the 


1 Act of 1852, $ 2. 2 Act of 1852, $ 3. 

s Act of 1852, § 4, prohibited the changing of the character of the pro¬ 

posed incorporated village, from general purposes to special, or from 
special to general, without appointing another time for hearing, and re¬ 
quiring new notice to be given. 





[15] 

discretion of said commissioners, that such petition be granted, they 
shall cause an order to he entered upon their journal, to the effect that 
the corporation as named and asked for in the petition, may he organ¬ 
ized. 1 

Sec. 15. Transcript of proceedings . The commissioners shall 
then cause a complete certified transcript of all their proceedings and 
orders to he made out, which transcript they or a majority of them 
shall sign, and cause to he delivered, together with the petition and 
map accompanying said petition, and all the other papers on file, to 
the recorder of the county. 1 

Sec. 16. Duty of recorder. The said recorder shall file the same 
in his office, and immediately after the expiration of sixty days after 
such filing, unless enjoined as hereinafter provided, he shall make a 
record of the said petition, transcript and map, in the proper hook of 
records in his office, and preserve in his office the original papers as 
delivered to him hy the commissioners, having certified thereon that 
the said transcript and map are properly recorded. 2 

Sec. IT. Transcripts to be certified, etc. As soon as said record is 
made, the recorder shall make out and certify, under his official seal, 
two transcripts thereof, one of which he shall forward to the secretary 
of state, and the other he shall, on demand, deliver to the agent or 
agents of said petitioners, with a certificate thereon that the duplicate 
thereof has been forwarded to the secretary of state as above provided. 2 

Sec. 18. Corporation complete. So soon as said record shall be 
made, the inhabitants residing within the limits of the territory de¬ 
scribed in the petition, shall be deemed and held to be an “ incorporated 
village for special purposes,” or “ an incorporated village,” as the case 
may be, to be organized and governed under the provisions of this 
act; and so soon as such corporation shall be organized by the elec¬ 
tion of officers as hereinafter provided, notice of its existence as such 
shall be taken in all judicial proceedings in this state. 3 

Sec. 19. Record thereof. The commissioners shall cause to be en¬ 
tered upon their journal a full and complete record of all their orders 
and proceedings in relation to the incorporation of villages as herein 
provided. 4 

Sec. 20. Application for injunction. Any person interested may, 
at any time within the period of sixty days from the day of filing the 
said transcript of the commissioners and papers with the recorder as v 
before provided, make application, by petition, to the court of common 
pleas of the county, or to the judge thereof if in vacation, setting 
forth in such petition the errors complained of, or the inaccuracy of 
said boundaries, or both, and praying an injunction restraining said 
recorder from making the said record and certifying the transcripts 
above required. 6 

1 Act of 1852, $ 5. 

2 Act of 1852, § 5, provided for the record “ as soon as may be ” after 
delivery to the recorder. 

3 Act of 1852, § 6. 4 Original. 6 Act of 1852, § 7. 



Sec. 21. Notification to recorder , etc. He shall also, immediately 
upon the filing of such petition, give notice in writing thereof to said 
recorder, and to the agent or agents of the said petitioners; and the 
recorder on receiving such notice, shall not record said transcript and 
map, or certify the same as above provided, until after the final hearing 
and disposition by the court or judge of the said petition. 1 

Sec. 22. Becorder to transmit papers to cleric. On receiving no¬ 
tice as above provided, the recorder shall forthwith transmit to the 
clerk of the court where the petition is pending, all the papers relating 
to said proceeding filed with him as required by section fifteen, to be 
used on the hearing of said petition. 2 

Sec. 23. Duty of court or judge, etc. It shall he the duty of the said 
court or judge to hear said petition in a summary manner, and at his 
discretion, to hear evidence, and if no error shall he found in said pro¬ 
ceedings, and no inaccuracy in the boundaries of such proposed corpo¬ 
ration, the court or judge shall dismiss said petition, and thereupon the 
clerk of the court shall return the papers to the recorder, with a tran¬ 
script of the order of the court, and the recorder shall then imme¬ 
diately record the said certified transcript, petition, map and order of the 
court, and forward and deliver the same as above provided. But if 
error shall he found in the said proceedings, or the boundaries are 
so inaccurately described as to render indefinite and uncertain the 
limits or extent of such proposed corporation, then the court or judge 
shall make an order enjoining said recorder from making a record of 
the said transcript or map, hut such order shall he no bar to any 
subsequent application for the foregoing purpose to the county com¬ 
missioners. 3 

Sec. 24. First election of officers. The first election of officers 
of such corporation shall he at the first annual spring election after 
the same has been created, and the place for holding such election 
shall be fixed by said agent or agents, and notice thereof shall he by 
them given by posters, printed or in writing, at three or more public 
places within the limits of the corporation. Said election shall be 
conducted and the officers thereof chosen and qualified in the same 
manner prescribed by law for the election of township officers. 4 

Sec. 25. Procedure when territory lies in two or more counties. 
When the inhabitants residing upon adjacent portions of territory, in 
two or more counties, laid off into town lots, a plat or plats of which 
have been made, acknowledged and recorded, desire to be organized 
into an incorporated village or into an incorporated village for special 
purposes, the petition therefor shall be made to the commissioners [of 
the county] in which the largest number of the qualified voters of the 


1 Act of 1852, § 7. 2 Original. 

sunder act of 1852, $ 7, the record having been made as required by 

§ 5, the court was required to make an order annulling the record, and 
the recorder to indorse the order so made on the record. 

4 Act of 1852, § 8, provided for a special election of officers, to continue 
in office until the first annual spring election after such incorporation. 





[ 17 ] 

proposed village shall reside at the time of the filing of such petition, 
and a statement to that effect shall he set forth in the petition. The 
transcript of the proceedings of the commissioners and the map or 
plat accompanying the same, shall he recorded in the county in which 
the petition is filed, at the time and in the manner provided for in 
other cases; and the recorder of such county shall, within ten days 1 
thereafter make a certified transcript of such record for each of the 
counties in which any portion of the territory is situated, and forward 
the same to the respective recorders thereof, to he hy them recorded in 
the manner that the original papers are required to he recorded. 1 

Sec. 26. Fame. In all other respects the proceedings to estab¬ 
lish such corporation, or to review the action of the commissioners, 
shall he as provided in cases where all the inhabitants residing on the 
territory to he organized into such corporation reside in one county. 1 

Sec. 27. Jurisdiction of officer's. In all cases in which the juris¬ 
diction of officers of municipal corporations is made cb-extensive with 
the county in which such corporations are situated, the jurisdiction of 
the like officers of any municipal corporation embracing territory situ¬ 
ated in two or more counties, shall he co-extensive with each of the 
counties in which any part of such territory shall be located. 1 

Sec. 28. Fees of officers. Every officer shall he entitled to re-* 
ceive, for the services required to he performed by him under the pre¬ 
ceding sections of this chapter, the same fees he would he entiled to 
receive for similar services in other cases, and unless paid in advance, 
upon demand of the agent or agents of said petitioners, he shall not 
he required to perform the said services. 


CHAPTER III 


■OF THE MANNER INCORPORATED VILLAGES FOR SPECIAL PURPOSES MAY 
BE ADVANCED TO THE GRADE OF INCORPORATED VILLAGES. 2 

Section. Section. 

29. Advance of grade, to incorporated vil* 35. Procedure on affirmative vote. 

lage. 36. Record of proceedings, transcript, etc. 

30. Application therefor. 37. Duty of recorder, judge, etc., same as in 

31. What petition shall contain. case of incorporated village. 

32. Trustees to fix time of holding election. 38. Corporation complete. 

S3. Conduct of the election, etc. 39. First election of officers, etc. 

34. Effect of negative vote. 

Sec. 29. Advance of grade, to incorporated village. Whenever 
the inhabitants of any incorporated village for special purposes, or any 
portion thereof, desire to he advanced to an incorporated village, they 
may proceed in the following manner : 

Sec. 30. Application therefor. Application for such purpose shall 


1 Act of February 23, 1858; 4 Curwen, eh. 18f3. 

2 The manner of advancing an incorporated village for special purposes 
to the grade of an incorporated village, is original. See act of February 
28,1861; 58 0. L. 23. 

2 





[ 18 ] 

be made to the trustees of such incorporated village for special pur- 
poses, by petition, in writing, signed by at least fifty of the legal vo¬ 
ters of such incorporated village for special purposes, a majority of 
whom shall be freeholders. 

Sec. 31. What petition shall contain. Such petition shall set 
forth that such incorporated village for special purposes, contains the 
required population for an incorporated village, and that it is the de¬ 
sire of the inhabitants to be advanced to the grade of an incorporated 
village, and it shall ask that an election be held to obtain the sense of 
the electors upon such advancement. 

Sec. 32. Trustees to fix time of holding election. The trustees 
upon receiving such petition and being satisfied that the persons whose 
signatures are thereto are electors and reside within such corporation, 
and that a majority of them are freeholders, shall fix upon the time 
and place for holding such election, and shall cause notice thereof to- 
be given, by posters, printed or in writing, for the period of at least 
three weeks prior to such election, in three or more of the most public 
places within such corporation. 

Sec. 33. Conduct of the election , etc. The trustees of such cor¬ 
poration shall be the judges of said election, and the said election, in 
all respects, shall be conducted in the same manner, so far as practica¬ 
ble, as is prescribed for the conduct of elections for township officers, 
and the ballots shall contain, in writing or in print, or both, the words 
“ for incorporated village,” or the words “ against incorporated vil¬ 
lage.” 

Sec. 34. Effect of negative vote. If it shall appear that the number 
of votes cast “ for incorporated village ” is not a majority of all the votes 
cast at said election, then no further proceedings shall be had; but 
such result shall not be a bar to any future petition to the trustees in 
relation to the same subject. 

Sec. 35. Procedure on affirmative vote. If it shall appear that 
the number of votes cast “ for incorporated village ” is a majority of 
all the votes cast at said election, the trustees shall then, within a rea¬ 
sonable time, cause a census to be taken, by some suitable person to 
be by them appointed for such purpose, of all the inhabitants of such 
corporation. The person taking such census shall make and subscribe 
a certificate that he believes the same is correct, and he shall be sworn 
or affirmed thereto by one of the said trustees or justice of the peace 
of the county. 

Sec. 36. Record of proceedings , transcript , etc. The said trus¬ 
tees shall cause to be entered on their journal an accurate minute of all 
their proceedings, together with the number of votes cast at said elec¬ 
tion “for incorporated village” and “against incorporated village,” 
and the whole number of votes cast, and also the whole number of in¬ 
habitants of such corporation as ascertained by such census. They 
shall also, in case the census taken shows that such corporation con¬ 
tains the required population, for an incorporated village, make out a 
complete certified transcript of all journal entries and proceedings by 
them had in the premises, and shall sign their names, or a majority of 




[19] 

them, thereto, and deliver the same, together with the said census and 
poll-hook and tally-sheet, to the recorder of the county. 

Sec. 37. Duty of recorder, judge, etc., same as in case of incor¬ 
porated village. The duty of the recorder in relation thereto, and in 
case of petition by the prosecuting attorney to prevent such advance¬ 
ment being completed, the duty of the prosecuting attorney and the 
court or judge, shall be the same, and the same proceedings shall be 
had, so far as applicable, as in the case of the organization of an in¬ 
corporated village, or an incorporated village for special purposes, un¬ 
der chapter two of this act. 

Sec. 38. Corporation complete. So soon as the recorder shall 
make the record and certify and forward to the secretary of state a 
transcript of the same, such corporation shall be deemed and held to 
be an incorporated village, bearing the name of the said incorporated vil¬ 
lage for special purposes, to be organized and governed under the pro¬ 
visions of this act, and so soon as such incorporated village shall be 
actually organized by the election and qualification of its officers, as 
hereinafter provided, notice of its existence as such shall be taken in 
all judicial proceedings in this state. 

Sec. 39. First election of officers, etc. The first election of offi¬ 
cers of such incorporated village, shall be at the first annual spring 
election next ensuing the certifying and forwarding of the transcript 
by the county recorder, and the said trustees of sueh incorporated vil¬ 
lage for special purposes shall remain in office until the officers of the 
new corporation are elected and qualified, and by-laws, regulations and 
ordinances, adopted for the government of such incorporated village 
for special purposes, shall remain in force so far as may be consistent 
with the provisions of this act, until annulled or repealed by the coun¬ 
cil of such incorporated village; and the said trustees shall, upon de¬ 
mand, after the expiration of their term of office, deliver to the clerk 
of such incorporated village all the books of record, documents and 
papers in their possession as the trustees of such incorporated village 
for special purposes. 


CHAPTER IV. 

OF THE MANNER IN WHICH INCORPORATED VILLAGES MAY BE ADVANCED TO 
CITIES OF THE SECOND CLASS ; AND CITIES OF THE SECOND CLASS AD¬ 
VANCED TO CITIES OF THE FIRST CLASS. 1 

Section. Section. 

40. Advancement of villages and cities of 44. Declaration of Council on affirmative 

second class. vote, etc. 

41. Certificate of clerks and judges. 45. Record, etc., same as in creation of in- 

42. Census to be taken, etc. corporated villages. 

43. Effect of negative vote, etc. 46. First election of officers. 

Sec. 40. Advancement of villages and cities of second class. 
Whenever one hundred resident freeholders of any incorporated vil- 

iThis chapter provides a new method of advancing incorporated vil¬ 
lages to cities, and cities of the second class to cities of the first class. 
See act of March 25, 1854 ; 4 Curwen, ch. 1438. 




[ 20 ] 

Iage, or two hundred resident freeholders of any city of the second 
class, shall petition the council of the corporation in which they re¬ 
side, setting forth, that they desire such village to be advanced to the 
grade of a city of the second class, or such city of the second class to- 
be advanced to the grade of a city of the first class, and that they 
have the requisite population for such advancement, the council shall 
cause notice to be given by the mayor as in other cases, that at the 
next annual election for officers of such city or village, the electors 
thereof may vote for or against the advancement by writing or print¬ 
ing, or both, on their ballots the words “for advancement,” or the 
words “against advancement.” 

Sec. 41. Certificate of clerks and judges. The clerks and judges 
of the election shall forthwith certify in duplicate to the clerk of 
the corporation the whole number of votes given at such election; 
the number of votes given “for advancement” and number of votes 
“against advancement.” 

Sec. 42. Census to be taken, etc. If a majority of all votes cafct 
at such election shall he in favor of such advancement, the council, if 
such corporation shall not have the required population according to 
the last federal census taken prior to the election, shall forthwith cause 
a census to be taken by one or more suitable persons, of all the inhab¬ 
itants of such city or village, in which census the full name of each 
person shall be plainly written, alphabetically arranged and regularly 
numbered in one complete series; which list shall he certified and 
sworn or affirmed to by the person or persons taking the same, and 
filed with the clerk of the corporation. 

Sec. 43. Effect of negative vote , etc. The clerk shall lay the said cer¬ 
tificates of election and census before the council at their next regular 
meeting after the same shall have been filed in his office, and if it shall 
appear that all the votes cast at such election “ for advancement ” are 
not a majority of all the votes cast at said election, or that the cor¬ 
poration does not contain the requisite number of inhabitants to he 
advanced in grade, then no further proceedings shall he had. 

Sec. 44. Declaration of council on affirmative vote , etc. If it shall 
appear that the corporation contains the requisite number of inhabitants 
to be advanced, the council shall thereupon, by resolution, declare that 
the inhabitants of the corporation have decided to he advanced to a 
corporation of the next higher grade, and direct the clerk to certify 
said resolution to the recorder of the county. 

Sec. 45. Eecord, etc., same as in creation of incorporated vil¬ 
lages. The duty of the recorder in relation thereto shall be the same, 
so far as applicable, as provided in chapter two, in the case of the cre¬ 
ation of an incorporated village or an incorporated village for special 
purposes ; and so soon as the recorder shall make the record and cer¬ 
tify and forward to the secretary of state a transcript of the same, the 
said corporation shall he deemed and held to he a city of the second 
or first class, as the case may be, to he organized and governed under 
the provisions of thbs act; and so soon as such corporation shall he 
actually organized, by the election and qualification of officers, notice 


[ 21 ] 

of its existence as such, shall be taken in all judicial proceedings in 
this state. 

Sec. 46. First election of officers , etc. The first election of officers 
of the new corporation shall be at the first annual spring election next 
ensuing the proceedings had as aforesaid, and the officers of the old 
corporation shall remain in office until the officers of the new corpo¬ 
ration are elected and qualified ; and the ordinances, by-laws and reg¬ 
ulations adopted by the old corporation shall continue in force, so far 
as may be consistent with the provisions of this act, until annulled 
or repealed by the council of the new corporation; and the council 
and officers of the old corporation shall, upon demand, after the expi¬ 
ration of their term of office, deliver to the proper officers of the new 
corporation, all the books of record, documents and papers in their 
possession belonging to the old corporation. 


CHAPTER Y. 

INCORPORATED VILLAGES FOR SPECIAL PURPOSES. 


Section. 

47. Trustees of village for special purposes. 

48. Their term of service. 

49. Their powers and duties. 

50. Vacancy, how filled, etc. 

51. Duty of trustees. 

52. Limitation of power. 

53. Further powers of trustees. 


Section. 

54. Powers as to by-laws, etc. 

55. Compensation of marshal. 

56. Jurisdiction of justices of the peace. 

57. Perpetuity of existing officers, ordi¬ 

nances, etc. 

58. Duty of clerk as treasurer—oath of 

office. 


Sec. 47. Trustees of village for special purposes. The corpor¬ 
ate authority of incorporated villages for special purposes shall be 
vested in three trustees, who shall be qualified electors residing within 
the limits of such corporation, and who shall hold their office for three 
years, except as herein provided, and until their successors are elected 
and qualified. 1 

Sec. 48. Their term of service. At the first meeting of,the trus¬ 
tees elected under the provisions of this act, they shall determine, by 
lot, the term of service of each trustee so elected, so that one shall 
serve for one year, one for two years, and one for three years, and at 
every succeeding annual election one trustee shall be elected to serve 
for three' years. 1 

Sec. 49. Their powers and duties. The said trustees shall have 
power to appoint, either from their own body or from the electors of 
the corporation, a clerk, who shall act as treasurer, and a marshal, 
who shall act as supervisor, and such other police officers as shall be 
necessary, and bj’’ proper by-laws, resolutions and ordinances prescribe 
the duties and compensation of the officers so appointed, and may re¬ 
move any such officers and appoint others at their discretion. 1 

Sec. 50. Vacancy , how filled , etc. The said trustees shall have 
power to fill any vacancy which may happen in their body from the 


i Act of 1852, § 44, as amended April 2,1859; 4 Curweu, ch. 2004. 




[ 22 ] 

qualified electors of the corporation, and the person so appointed shall 
continue in office until the next regular election and until his successor 
is elected and qualified; any two of said trustees may transact busi¬ 
ness ; but notice of any meeting for the transaction of business must 
be given to all. 1 

Sec. 51. Duty of trustees. The said trustees shall have the ex¬ 
clusive jurisdiction of all public roads, streets, alleys, sewers and 
drains, constructed or to be constructed, within the limits of the cor¬ 
poration ; and they shall have power to construct and keep in repair 
bridges and sidewalks; to lay out, establish, open, widen, improve, 
straighten, keep in order and repair roads, streets and alleys; to open 
and construct and keep in order and repair sewers and drains-; to enter 
upon and take for the purposes aforesaid, when necessary, land and 
material, and to assess and collect a charge for the construction, im¬ 
provement and repair of any such road, street or alley. 2 


1 Act of April 2,1859; 4 Curwen, ch. 2004. 

2 Act of 1852, § 45, as amended March 11,1853; 3 Curwen, ch. 1248. For 
the manner of proceeding to appropriate private property to the use of 
the incorporated village for special purposes, see post, ch. 47. 

A village incorporated for the special purpose of being a road district, 
is not one of the municipal corporations whose consent to the construc¬ 
tion of a street railway is required by the fifth section of the street 
railway act of April 10, 1861; 58 O. L. 66. Street Railway v. Cummins - 
mile, 14 O. S. 523. 

Nor is the consent of the trustees of such a corporation necessary, under 
the 7th section of that act, when the railway is laid upon the road-bed of 
a turnpike company, and in pursuance of an agreement with such com¬ 
pany. II. 

Authority to lay down the necessary structure for a street railway in 
a common highway or street, and to run ears thereon for the carriage of 
passengers for hire, may be lawfully granted to a company incorporated 
for that purpose, when "no private right of the adjoining lot-owners is 
thereby impaired. 11. 

The legislature may authorize the occupation of the easement, origin 
nally acquired by grant or appropriation, in any manner calculated to 
further the general objects of the acquisition, but may not divert it to 
purposes which exclude the original uses, or lay additional burdens upon 
the land, or destroy or impair the incidental easements of adjoining lot- 
owners, in the street or highway. II. 

This interest of adjoining lot-owners is properly protected by the Con¬ 
stitution, and subject to be taken or appropriated only upon the condition 
that compensation is made. Crawford v. Delaware , 7 O. S. 459, followed 
and approved. II. 

When the public authorities have taken possession of a street or high¬ 
way, and regularly defined the interests and improvements necessary for 
the use of the public, by establishing grades, etc., lot-owners have the 
right to make their improvements in reference thereto, and no subsequent 
change, which obstructs or impairs access to such improvements, can be 
lawfully made without compensating for the injury. II. 

A finding of the court that such injury will result from laying a street 
railroad track near the side-walk in front of the owner’s house, shop, 
etc., is in no way qualified or affected by the further fact, also found, 
that when the interests of the company, and of the general traveling 
public are also taken into the account, the location would be as little 
injurious as in any other part of the highway. II. 



[23] 

Sec. 52. Limitation of power. No order directing the opening of 
any new road, street or alley, or the taking of any land for the im¬ 
provement, straigthening or changing any road, street or alley, shall 
be made by said trustees, nor shall any ordinance be passed for such 
purpose, unless they shall all concur therein; and no order shall be 
made for the improvement or repair of any road, street or alley, ex¬ 
cept on the petition of two-thirds of the owners of the lots or land 
through or by which such road, street or alley, or part thereof to be 
improved or repaired, shall pass. 1 

Sec. 53. Further powers of trustees , The said trustees shall have 
power to provide as follows : 2 1. To protect the property and persons 
of the inhabitants against injuries and destruction by fire, thieves, 
robbers, burglars, and all other persons violating the publie peace. 
2. To suppress riots, noise and disturbance, gambling, drunkenness, 
and indecent and disorderly assemblages and conduct. 3. To punish 
all lewd and lascivious behavior in the streets, alleys and other public 
places. 4. To suppress and restrain disorderly houses and houses of 
ill-fame. 5. To regulate, restrain and prohibit ale, beer and porter 
houses or shops, and houses and places of notorious and habitual re¬ 
sort for tippling and intemperance. 6. To regulate taverns and other 
houses of public entertainment. 7. To regulate or prohibit theatrical 
exhibitions and public shows, and all exhibitions of whatever name or 
nature for which money is demanded or received; but public lectures 
on historic, literary or scientific subjects shall not come within the 
provisions of this section. 8. To prevent injury or annoyance from 
anything dangerous, offensive or unhealthy, and to cause any nuisance 
to be abated. 9. To acquire real estate for public halls and school- 
houses and to erect the necessary buildings thereon. 10. To protect 
all public buildings and property within or owned by the corporation. 
11. To provide public cemeteries and for the improvement and pro¬ 
tection thereof, and to regulate the burial of the dead; and 12. To 
provide for the comfort, convenience and safety, preserve the health 
and peace, promote the good order and prosperity, and improve the 
morals of the inhabitants of the corporation. 3 

Sec. 54. Powers as to by-laws, etc. The said trustees shall have 
power to make and publish, in the same manner as other corporations, 
such by-laws, resolutions and ordinances as to thein shall seem neces- 


1 Under the act of 1852, § 46, as amended March 12,1253; 3 Curwen,cli. 
1251, it was sufficient for two-thirds of the “ resident owners ” to sign the 
petition. 

2 The powers granted to incorporated villages for special purposes, in 
this section, do not seem to have been granted heretofore. 

3Where the corporate authorities had power “to make, ordain and 
publish all such by-laws and ordinances, consistent with the constitution 
and laws of this state, and of the United States, as they shall deem 
necessary for the well regulation, interest, health, cleanliness, conven¬ 
ience and advantage of said borough and its inhabitants; to impose 
fines forfeitures and penalties (not exceeding fifty dollars) upon each 
and every person offending against the laws and ordinances, which maj r 


v 



[24] 

saiy to cany into effect the foregoing powers; and shall have in all 
respects, the like rights and remedies in the enforcement of such by¬ 
laws, resolutions and ordinances, as are herein given to other munici¬ 
pal corporations. All by-laws and ordinances shall require for their 
adoption the concurrence of all the trustees. 1 

Sec. 55. Compensation of marshal. The services performed by 
the marshal in his capacity of supervisor, under the direction of the 
trustees, shall be settled and paid for by the trustees of the proper 
township or townships as in other cases ; and for his services as mar¬ 
shal he shall receive the same fees aa marshals in other municipal cor¬ 
porations for like services.. The trustees, in their capacity as trustees, 
shall not receive any compensation. 2 

Sec. 56. Jurisdiction of justices of the peace. Any justice of the 
peace of the township or townships in which the corporation may he 
situated, shall have jurisdiction in all prosecutions for the violation of 
any ordinance thereof, with full power to hear and determine the same 
and impose the prescribed penalty; and all fines, penalties and for¬ 
feitures collected by any justice of the peace for the violation of any 
ordinance, shall be by him paid over to the clerk of the corporation. 

Sec. 57. Perpetuity of existing officers , ordinances, etc. All trus¬ 
tees and officers of corporations heretofore organized and now exist¬ 
ing as special road districts, shall continue in office as trustees and 
officers of incorporated villages for special purposes, as herein estab¬ 
lished, until their successors are elected and qualified; 3 and all by¬ 
laws, resolutions and ordinances of such special road districts shall 
continue in force as by-laws, resolutions and ordinances of the incor¬ 
porated village for special purposes, until repealed. 

Sec. 58. Duty of clerk as treasurer—oath of office. The clerk, in 
his capacity as treasurer, shall be entitled to demand and receive all 
moneys due or belonging to the corporation, and shall disburse the 
same on the order of the trustees ; and the clerk and marshal shall 
each give bond to the corporation for the faithful performance of their 


be made as aforesaid,” ete.; and passed an ordinance to prevent the run¬ 
ning at large in the town of hogs and other animals: Held, that the 
ordinance could not be adopted, under these general powers, because in 
contravention of a general law of the state relating to astray animals, 
that provided, “that no person shall be allowed to take up any neat 
cattle, sheep or hogs, after the first day of April, and before the first day 
of November annually.” 

Neither could the ordinance be justified under the power “ to require 
and compel the abatement of nuisances,” because it is manifest that such 
is not the nuisance spoken of. Said Hitchcock, J., “ It is common in our 
legislature to grant expressly to towns corporate, the power to do what 
in this case has been attempted to be done, that is, to prohibit horses, 
cattle and swine from running at large. Such being the practice, it is 
right to presume, where this power is not expressly granted, it was in¬ 
tended it should not be exercised.” Collins v. Hatch , IS O. 523. And see- 
§ 199, and authorities cited. 

1 Infra , chs. 10, 11; Act of 1852, § 45. 

2 Infra , § 143. 3 Infra , §§ 70, 728. 



[25] 

duties, in such sum as the trustees may require. The trustees and 
other officers shall, before entering on their duties, take an oath of 
office. 1 


CHAPTER YI. 


OFFICERS OF MUNICIPAL CORPORATIONS. 


Section. 

59. Village officers to be elected. 

60. Officers of cities of second class. 

61. Officers of cities of first class. 

62. Their term of office. 

63. Other requisite officers. 

64. Appointments, how made. 


Section. 

65. Duties not defined in this act. 

66. Vacancies, how filled. 

67. Vacancy on removal. 

68. Council to prescribe compensation. 

69. No change of emoluments during term 

of office. 


Sec. 59. Village officers to be elected. The officers of incorporated - 
villages shall consist of a mayor, clerk, treasurer and marshal, all of 
whom shall be elected; and the council shall have power, whenever 
deemed expedient, to create, by ordinance, the office of solicitor and 
street commissioner, and provide for their election in the same manner 
the other officers of the corporation are elected. 2 

Sec. 60. Officers of cities of second class. The officers of cities of 
the second class shall consist of a mayor, clerk, treasurer, city com¬ 
missioner, who shall he superintendent of streets, marshal and solic¬ 
itor, all of whom shall be elected; and the council shall have power, 
whenever deemed expedient, to create, by ordinance, the office of au¬ 
ditor, civil engineer, fire engineer, and superintendent of markets, and 
provide for their election in the same manner the other officers of the 
corporation are elected. 3 

Sec. 61. Officers of cities of first class. The officers of cities of 
the first class shall consist of a mayor, solicitor, treasurer, street 
commissioner, police judge, prosecuting attorney of the police court, 
clerk of the police court, all of whom shall he elected; and a fire en¬ 
gineer, superintendent of markets, civil engineer and chief of police, 
to he appointed by the mayor with the assent of the council; and a 


1 “ Every person chosen or appointed to any office under this state, 
before entering upon the discharge of its duties, shall take an oath or 
affirmation to support the Constitution of the United States, and of this 
state, and also an oath of office.” Const., Art. XY, § T. In State v. 
Xennon, 7 O. S. 546-558, the court say, that by force of the constitutional 
provision, it is the duty of an officer to take such oath whether the 
same be prescribed by statute or not. 

The oath of office is a mere ministerial act, and not a condition prece¬ 
dent to entering upon the duties of the office, nor will the omission to 
take it by the principal in an official bond discharge the sureties, unless 
otherwise directed by statute. State v. Findley , 10 O. 51. 

2 Act of 1852, § 47, as amended March 12, 1862 (59 O. L. 23); § 48, as 
amended February 5,1861 (58 0. L. 6); '§ 50, as amended February 21, 
1867 (64 O. L. 21). 

3 Act of 1852, § 69, as amended March 25,1862; April 29,1862; March 
15,1869 (66 O. L. 25); May 13,1868 (65 O. L. 186); Act of 1852, $ 57, et eeq. 




[ 26 ] 

clerk and auditor, to be elected by the council; and the council shall 
have power to provide, by ordinance, for the election or appointment 
by the mayor, of as many lieutenants of police as may be deemed 
necessary. 1 

Sec. 62. Their term of office. All officers who are elected shall 
serve for two years and until their successors are elected and qualified, 
and all officers who are appointed shall serve for one year and until 
their successors are appointed and qualified. 2 

Sec. 63. Other requisite officers. The council shall have power to 
provide for the appointment, or election by the qualified electors of the 
corporation, wards or districts, as the case may require, of all such 
other officers as shall be deemed necessary for the good government 
of the corporation, and the full execution of its corporate powers. 3 

Sec. 64. Appointments, how made. All appointments of officers 
of municipal corporations created by law or ordinance, shall be made 
by the mayor, by and with the advice and consent of the council, and 
the concurrence of a majority of all the members elected shall be re¬ 
quired to confirm any such appointment, and the names of those 
voting, and for whom they voted on the vote resulting in an appoint¬ 
ment, shall be recorded. 4 

Sec. 65. Duties not defined in this act. All officers whose powers 
and duties are not defined in this act, shall perform such duties, and 
exercise such powers, as shall be prescribed by ordinance. 5 

Sec. 66. Vacancies , how filled. All vacancies in offices filled by 
appointment, and all other vacancies occurring within sixty days prior 
to the annual corporation election, shall be filled by appointment, as 
in other cases ; and such appointment shall be for the unexpired term 
and until a successor is elected and qualified ; and all elections to fill 
vacancies shall be for the unexpired term. All vacancies in any other 
office created by this act, shall be filled in the manner above provided. 6 

Sec. 67. Vacancy on removal. When any officer shall remove 
without the limits of the corporation, such removal shall be deemed 
a vacating of the office; and the vacancy shall be filled as in other 
cases. 7 

Sec. 68. Council to prescribe compensation. Officers of municipal 
corporations, who are not prohibited from receiving compensation, or 
whose compensation is not by law provided for, shall receive such fees 
or compensation for their services as the council may prescribe. 1 
Sec. 69. No change of emoluments during term of office. The emol- 

iAct of 1852, § 71, as amended April 17, 1854 (4 Curwen, ch.1451); 
§ 72; § 61, as amended April 29,1854; February 9,1863 (60 O. L. 4). 

2 Act of 1852, §§ 47, 50,61, 69, 71 and 72, as amended, supra. 

3 Act of 1852, § 61, as amended, supra. 

4 § 61 and 71, as amended, supra. 

s Act of 1852, § 61, as amended February 9,1863. 

6 Act of 1852, § 67, as amended April 5,1856; 4 Curwen, ch. 1577. 

7 Act Of 1852, § 53. 



[27] 

uments of no officer, whose election or appointment is required by this 
act, shall be increased or diminished during the time for which he may 
have been elected or appointed ; nor shall any change of compensation 
affect any officer whose office shall be created under authority of this 
act, during his existing term, unless the office be abolished; and no 
person who shall have resigned or vacated any office shall be eligible to 
the same during the time for which he was elected or appointed to 
serve, when, during the same time, the emoluments have been in¬ 
creased, 1 


CHAPTER VII. 

ELECTION OF OFFICERS. 2 

Section. Section. 

70. Elections first Monday of April. 75. Returns, of elections. 

71. Special elections. 76. Clerk to make out abstract of votes. 

72. Council to designate places of election. 77. Judges and clerk of election. 

73. Mayor to issue proclamation. 78. Tie vote to be decided by lot. 

74. Who are qualified voters. 

Sec. 70. Elections first Monday of April. The first Monday in 
April shall be the regular annual period for the election of all munici¬ 
pal officers whose election is provided for in this act. 

Sec. 71. Special elections. Special elections of members of the 
council, or of any officer chosen by the electors, shall be held within 
twenty days after a vacancy happens, (unless the regular day for mu¬ 
nicipal elections shall occur within sixty days after such vacancy,) at 
such time and place as the mayor shall direct, so that ten days’ no¬ 
tice of such election be first given. 

Sec. 72. Council to designate places of elections. The council of 
every municipal corporation shall designate the place or places for 
holding the regular elections; and in all corporations divided into 
wards, there shall be a place in each ward designated for holding elec¬ 
tions. 

Sec. 73. Mayor to issue proclamation. It shall be the duty of 
the mayor, in all elections for municipal officers, to issue a procla¬ 
mation to the qualified voters of the corporation, or of the respec¬ 
tive wards or districts, as the case may require, setting forth the time 
and places of election, and the officers to be chosen, and to cause such 
proclamation to be published in sdme newspaper printed in such cor¬ 
poration at least ten days previous to the election; or if no newspaper 
be published in the corporation, such notice may be given by posters. 

Sec. 74. Who are qualified voters. Any person who, at the time 
of any election of municipal officers, would be a qualified voter, under 
the laws of the state, for county officers, and shall actually reside in 
the corporation or ward in which he offers to vote, shall be deemed a 


1 Act of 1852, § 86. 

2 Act of 1852, § 99, as amended April 17,1857; 4 Curwen, ch. 1787; § 100. 




[ 28 ] 

qualified voter; and all elections shall, in all respects, be held and 
conducted in the manner prescribed by law in case of township elec¬ 
tions. 1 

Sec. 75. Returns of elections. The returns of all municipal elections 
in corporations which are divided into election districts or wards, shall 
he made to the clerk of the corporation, and shall he opened hy him 
within the time prscrihed as to the clerk of the court of common pleas 
in county elections. 1 

Sec. 76. Clerk to make out abstract of votes. The clerk, or in 
his absence or disability, some person to be selected by the council, 
shall call to his assistance the mayor of the corporation, or if there be 
no mayor, or the mayor be absent, disabled, or shall have been a can¬ 
didate at such election, then any justice of the peace of the county, and 
shall, in his presence, make out an abstract and ascertain the candi¬ 
dates elected, in all respects as required by law of the clerk of the court 
of common pleas ; and he shall, in like manner, make out a certificate as 
to each candidate so elected, and cause the same to be delivered to 
him or to be left at his usual place of abode. 1 

Sec. 77. Judges and clerk of election. At all elections in corpo¬ 
rations which are not divided into election districts or wards, the mayor 
and council, any three of whom shall be a quorum, shall serve as 
judges, and the clerk shall serve as clerk; and after canvassing the 
votes which may be given at such election, shall declare the result, 
and the clerk shall make out and deliver to each person elected to any 
office in such corporation a certificate of such election. 1 

Sec. 78. Tie vote to be decided by lot. If more than the number 
of persons to be elected have an equal number of votes for the same 
office, then the officers whose duty it is to ascertain the persons elected, 
as above provided, shall determine, by lot, which of the persons re¬ 
ceiving such equal number of votes shall be declared elected. 1 


CHAPTER Yin. 

QUALIFICATIONS, OATH AND BOND OF OFFICERS. 2 

Section. Section. 

79. Electors only eligible—oath of office. 81. Bond and oath required within ten 

80. Bond of officers. days. 

Sec. 79. Electors only eligible—oath of office. All officers shall be 
electors of the corporation in which they may be elected or appointed; 
and before entering upon the duties of their office shall take an oath 
or affirmation to support the constitution of the United States, and 
the state of Ohio, and also an oath or affirmation of office. 

Sec. 80. Bond of officers. Each officer named in chapter six, shall, 
before entering upon the duties of his office, execute a bond, to be ap¬ 
proved by the mayor, (except the bond of the mayor shall be approved 


i Act of 1852, § 100. 


2 Act of 1852, § 101. 




L29] 

by the council,) in such amount as the council shall, by ordinance, 
prescribe, conditioned for the faithful performance of the duties of his 
office, which bond (except the bond of the clerk) shall be deposited 
with the clerk of the corporation, and be by him, with the approval 
indorsed thereon, recorded and filed and preserved in his office, and the 
bond of the clerk shall, after being by him recorded, be deposited with 
the mayor. 

Sec. 81. Bond and oath required within ten days « The council 
may require from each officer whose appointment is provided for in 
section sixty-three, a bond, with proper penalty and surety, for the 
faithful discharge of the duties of his office; and shall have power to 
declare the office of any person appointed or elected to any office who 
shall fail to take the oath of office, or give bond when required, for 
ten days after he shall have been notified of his appointment or election, 
vacant, and such vacancy shall be filled as in other cases of vacancy. 


CHAPTER IX. 

COUNCIL OF THE CORPORATION. 


Sf.ctiojn. 

82. The council. 

83. Members must be residents. 

84. Prerogative. 

85. First election—terms of office. 

86. First meeting of council. 

87. Organization of council. 

88. Rights, duties, etc., of council. 

89. Ex-officio members of council. 


Section. 

90. Times and place of meeting, 

• 91. Compensation of members. 

92. Members shall not be interested in con¬ 

tracts—penalty, etc. 

93. Who ineligible. 

94. Expulsion and removal. 

95. Process to compel attendance. 

96. Administration of oaths. 


Sec. 82. The council. The legislative authority of all incorporated 
villages shall be vested in a council consisting of six members, except 
in incorporated villages divided into thjee or more wards, when such 
authority shall be vested in a council composed of two members from 
each ward. The legislative authority of all cities shall be vested in a 
council consisting of two members from each of the wards. 1 

Sec. 88. Members must be residents. The members of the council 
shall be residents of the corporation from which they shall be elected, 
and if the corporation be divided into wards, then residents of the 
ward for which they shall be elected. 2 


1 Act of 1852, § 47, as amended March 12,1802 (59 O. L. 23), Vested the 
corporate authority of incorporated villages “in one mayor, one re¬ 
corder, and five trustees;” § 59. 

2 Act of 1852, § 59. 

Under the charter of the city of Cleveland *(which was divided into 
three wards), a council was elected on the 4th of March, 1850, to serve 
for one year, consisting of three aldermen elected at large, and three 
councilmen in each ward, who were required to “ reside therein.” On 
the 22d of that month the legislature amended the charter, dividing the 
city into four wards* and reducing the number of councilmen to two in 
each ward. By this division, some of the councilmen were thrown out 
of the wards for which they were elected. This amendment made no 




[30] 

Sec. 84. Prerogative . The council shall have the management and 
control of the finances, and of all the property, real and personal, of 
the corporation, except as may be otherwise provided for by law. 1 

Sec. 85. First election-^-terms of office. At the first election for 
council of incorporated villages under this act, three of the members 
shall be elected to serve for one year, and three for two years ; and in 
such incorporated villages as may be divided into three or more wards, 
one of the members of the council for each of the wards shall be elected 
to serve for one year, and one for two years; and thereafter, in all in¬ 
corporated villages, the members of the council shall be elected to 
serve for two years. 2 * * * * 7 

Sec, 86. First meeting of council. It shall be the duty of the 
mayor, or in his absence or inability, then the clerk, at the hour of the 
first regular meeting of the council after the second Monday of April 
in each year, to call the members elect to that body and the members 
holding over, who may be assembled, to order, and as the members 
elect are called, they shall present their certificates and take the re¬ 
quired oath or affirmation. In incorporated villages, the mayor shall 
be the president of the city council, but shall have no vote except in 
cases of a tie. In case of his absence from any meeting, the council 
shall appoint one of their number to perform his duties for the time 
being. 8 

Sec. 87. Organization of council. In all cities, if the members 
elect of the council and the members holding over, then present, shall 
constitute a quorum, they shall forthwith proceed to organize by elect¬ 
ing, from their own number, a president, and a president pro tern., and 
such other officers necessary to perfect their organization as, by ordi- 


provision for an election under it until the next year, nor did it provide 
when it should take effect: Held, that the amendatory law had no effect 

upon the council then elected. The effect of its provisions, dividing the 
city into wards for election purposes, must be postponed until they could 

be called into requisition in future elections. If this were otherwise, 

yet, while the members of the council continued to act de facto, their 

proceedings would be valid. Scovill v. Cleveland , 1 O. S. 126. 

“We do not suppose that this alteration of the wards had any more 
effect upon them, than an alteration of the legislative districts of the 
state before the expiration of the terms of the sitting members, with a 
view to a future election, would have upon the latter. The object would 
be the same in both cases. This view of the matter disposes of the ques¬ 
tion; but if it were otherwise, we are still equally clear that while they 
continued to act de facto in virtue of their election, their proceedings 
would be’valid and binding. This principle has been expressly and 
repeatedly settled by thd supreme court of this state. State v. Constable, 

7 O. 1; State v. Ailing, 12 O. 16; State v. Jacobs, 17 O. 143.” llanney, 
J. Ib. 126-129. 

1 Act of 1852, § 61, as amended April 29,1854; February 9,1863 (60 0. 
L, 4.) 

2 Act of 1852, § 47, as amended March 12,1862 (59 0. L. 23.) 

3 Act of 1852, § 59; § 48, as amended February 5,1861 (58 0. L. 6.) 



[31] 

nance, may be provided, and no business sliall be transacted until such 
organization is effected. 1 

Sec. 88. Bights , duties, etc., of council. The council shall be the 
judge of the election, returns and qualifications of its own members, 
and shall determine the rule of its proceedings and keep a journal 
thereof, and may compel the attendance of absent members in such 
manner and under such penalties as may, by ordinance, be prescribed. 1 

Sec. 89. Ex-officio members of council. The city auditor, the 
city civil engineer, and the city solicitor shall have seats in the conn* 
cil, and be entitled to take part in its proceedings and deliberations on 
all questions relating to their respective departments, subject to such 
rules as the council shall from time to time prescribe, but without the 
right to vote. Said officers may be compelled to attend meetings of 
the council in the same manner as the members are. 2 

Sec. 90. Times and place of meeting. The council shall not be 
required to hold more than one regular meeting in each week; and the 
meeting of such council may be held at such time and place as may be 
by ordinance prescribed, and shall, at all times, be open to the public; 
The mayor, or any three members may call special meetings by notice 
to each member served personally, or left at his usual place of abode. 3 

Sec. 91. Compensation of members. The members of the council 
shall not receive any compensation for their services, except when act¬ 
ing as judges of election, when they shall receive such compensation 
as is provided by law for judges of election. 3 

Sec. 92. Members shall not be interested in contracts — -penalty, 
etc. No member of the council or any officer of the corporation shall 
be interested, directly or indirectly, in the profits of any contract, job, 
work, or services, ( other than official services to be performed for the cor¬ 
poration,) nor shall any member or officer act as commissioner, archi¬ 
tect, superintendent or engineer in any work undertaken or prosecuted 
by the corporation during the term for which he was elected or ap¬ 
pointed, or for one year thereafter. Any member of any city council 
or officer herein specified, offending against the provisions of this sec¬ 
tion, shall, upon conviction thereof in any court of competent jurisdic¬ 
tion, be fined in any sum not less than five hundred nor more than 
one thousand dollars, or be imprisoned in the county jail not less than 
thirty days nor more than six months, or both, at the discretion of 
the court, and shall, in addition thereto, forfeit his office as such mem¬ 
ber of the council or officer of the corporation. 4 


1 Act of 1852, § 59; § 48, as amended February 5,1861 (58 0. L. 6.) 

2 Act of April 12,1858; 4 Curwen, ch. 1856. 

3 Act of May 5, 1868 (65 O. L. 127); April 4, 1862 (59 O. L. 40); Feb¬ 
ruary 9,1863 (60 O. L. 4). 

An adjourned meeting is but a prolongation of a regular meeting, and, 
it seems, no new notice is required. Wiswell v. First Congregational Church , 
14 O. S. 31-40. 

4 Act of 1852, § 88; Act of March 3,1860, $ 11; 4 Curwen, ch. 2068. 



[32] 

Sec. 93. Who ineligible. No person shall be eligible as a member of 
the council, who at the same time bolds any municipal office, or is an 
employe under the government of the corporation. 1 

Sec. 94. Expulsion and removal. Any member of the council 
m‘ay be expelled or removed from office by a concurrent vote of two- 
thirds of all the members elected, but not a second time for the same 
cause; any officer or agent, appointed by authority of this act, may 
be removed from office at the pleasure of the council by the vote of a 
majority thereof ; any officer elected may be removed from office by a 
concurrent vote of two-thirds of all the members of the council elected* 
In case of elective officers, provision shall be made by ordinance for 
preferring charges and trying tfye same; but in no case shall such re¬ 
moval be made unless a charge in writing is preferred and an oppor¬ 
tunity given to make defense. 2 

Sec. 95. Process to Gompel attendance. To enable the council 
fully to investigate charges against the members thereof, or other 
officers, or such other matters as they may deem proper, the mayor or 
police judge, at the request of the council, are hereby empowered to 
issue subpoena or compulsory process, to compel the attendance of 
persons and the production of books and papers before the council or 
any committee of the same. 2 

Sec. 96. Administration of oaths. In all cases in which the coun¬ 
cil are authorized to compel the attendance of witnesses for the inves¬ 
tigation of matters which may come before them, the presiding officer 
for the time being shall have power to administer the requisite oaths ; 
and such council shall have such power to compel the giving of testi- 
mony by the attending witnesses as is conferred on courts of justice. 8 


f 

CHAPTER X. 

ORDINANCES, RESOLUTIONS AND BY-LAWS-—'IIOW ADOPTED AND PASSED. 
Section. Section. 

97. Adoption of ordinances, etc. 101. Statement as to publication. 

98. Must be read three times, unless, etc. 102. Mode of publication. 

99. Subject, and amendment, of by-laws, etc. 103. Effect of non-publication. 

100. Recording and publishing of by-laws, 104. By-laws, ordinances, etc., as evidence, 
ordinances, etc. 

Sec. 97. Adoption of ordinances, etc. All ordinances and resolu¬ 
tions, and all by-laws for the government of the council, shall require 
for their passage or adoption the concurrence of a majority of all the 
members elected, and the vote on their passage or adoption shall be 


1 Act of April 4, 1862 (59 O. L. 400 

2 Act of 1852, § 67, as amended April 5,1856; 4 Cur wen, ch. 1577; § 53. 

3 Act of April 17, 1857, §4; 4 Curwen, ch. 1787. 




taken by yeas and nays and recorded on the journal; and no money 
shall be appropriated except by ordinance. 1 

Sec. 98. Must be read three times, unless, etc. All by-laws, reso¬ 
lutions and ordinances, of a general or permanent nature, shall be fully 
and distinctly read on three different days, unless three-fourths of all 
the members elected shall dispense with the rule ; and the vote on such 
suspension shall be taken by yeas and nays and entered on the journal. 1 

Sec. 99. Subject and amendment of by-laws, etc. No by-law or 
ordinance shall contain more than one subject, which shall be clearl}>- 
expressed in its title; and no by-law or ordinance, or section thereof, 
shall be revived or amended, unless the new by-law or ordinance con¬ 
tain the entire by-law or ordinance, or section revived or amended ; 
and the by-law or ordinance, section or sections, so amended, shall be 
repealed. 1 

Sec. 100. Recording and publishing of by-laws, ordinances, etc. 


i Act of 1852, § 88; § 103. 

Art. II. § 16 of the constitution, provides that “every bill shall be folly 
and distinctly read on three different days, unless, in case of urgency, 
three-fourths of the house in which it shall be pending shall dispense 
with this rule. No bill shall contain more than one subject, which shall 
be clearly expressed in its title; and no law shall be revived or amended, 
unless the new act contain the entire act revived, or tin* section or sections 
amended; and the section or sections so amended, shall be repealed.” 

Swan, J., delivering the opinion in Pirn v. Nicholson, 6 O. S. 176, said : 
“This court held, in the case of Miller and Gibsonx. The State, 3 O. S. 475, 
that the provisions of the above section, relating to the distinctness 
required in reading a bill, and the number of times a bill shall be read, 
were, as they in fact import, intended as permanent rides for the proceed¬ 
ings of the houses. They are directory only, and are to be enforced by 
the houses, and not by judicial interposition. The further provision, in 
the same section, that no bill shall contain more than one subject, which 
shall be clearly expressed in its title, is also made a permanent rule in 
the introduction and passage of bills through the houses. The subject of 
the bill is required to be clearly expressed in the title, for the purpose of 
advising members of its subject, when voting in cases in which the read¬ 
ing has been dispensed with by a two-thirds vote. The provision that a 
bifl shall contain but one subject, was to prevent combinations, by which 
various and distinct matters of legislation should gain a support which 
they could not if presented separately. As a rule of proceeding in the 
General Assembly, it is manifestly an important one. But if it was 
intended to effect any practical object for the benefit of the people in the 
examination, construction, or operation of acts passed and published, we 
are unable to perceive it.” *****” We are, therefore, of the 
opinion, that in general the only safeguard against the violation of these 
rules of the houses, is their regard for. and their oath to support, the con¬ 
stitution of the state. We say, in general, the only safeguard: for 
whether a manifestly gross and fraudulent violation of these rules might 
authorize the court to pronounce a law unconstitutional, it is unnecessary 
to determine. It is to be presumed that no such case will ever occur.” 
And see as to the other clauses of that constitutional provision, Lehman 
v. McBride , 15 O. S. 573; Robinson v. Gano % 4 Weekly Law Gazette, 337. 

Section 88 of the City Charter, which provided “that no by-law or 
ordinance shall contain more than one subject, which shall be clearly 
expressed in its title,” was directory. Barton v. Huntington, Superior 
Court of Cincinnati, General Term, 1869, MS. 

An ordinance may be valid in part and void in part. Ib. 

3 



[34] 

All by-laws, resolutions and ordinances, shall, as soon as may be after 
their passage, be recorded in a book kept for that purpose, and be au¬ 
thenticated by the signature of the presiding officer and clerk of the 
council, and all ordinances shall be published in some newspaper of 
general circulation in the corporation; if a daily, six times, and if a 
weekly, twice, before going into operation. 1 

Sec. 101. Statement as to publication. The clerk shall, imme¬ 
diately after the expiration of the period of such publication, enter, on 
the record book of ordinances, in a blank space to be left for such pur¬ 
pose under the recorded ordinance, a certificate stating in what news¬ 
paper and of what dates such publication was made, and sign his name 
thereto officially, and such certificate shall be prima facie evidence that 
legal publication of # such ordinance has been made. 2 

Sec. 102. Mode of publication. In all corporations in which there 
is no newspaper published, publication may be made by posting up 
written copies of all ordinances at not less than five of the most pub¬ 
lic places in the corporation, for a period of not less than fifteen days 
prior to the taking effect thereof; and the clerk shall make a certificate 
of such posting and the times when, and the places where, in the same 
manner as provided in the preceding section, and such certificate shall 
be prima facie evidence that such copies were posted up as required. 1 

Sec. 103. Effect of non-publication. It shall be deemed a suffi¬ 
cient defense to any suit or prosecution under any ordinance, to show 
that no such publication or posting as herein required, w T as made. 1 

Sec. 104. By-laws, ordinances, etc., as evidence. The printed 
copies of the by-laws or ordinances of any corporation, published 
under its authority, and transcripts of any by-laws or ordinances, or 
of any act or proceeding of any municipal corporation, recorded in 
any book, or entered on any minutes or journal, kept under the direc¬ 
tion of such corporation, and certified by its clerk, shall be received 
in evidence for any purpose for which the original books, ordinances, 
minutes or journal, would be received, and with as much effect. 3 


CHAPTER XI. 


ORDINANCES-HOW ENFORCED, 


Section. 

105. IIow ordinances, etc., enforced. 

106. Amount of fines, etc. 

107. Imprisonment. 

108. IIow fines, etc., recovered. 

109. Suits must be commenced within one 

year. 


Section. 

1L0. Party to be committed in default of 
payment. 

111. Imprisonment, where to be made. 

112. Imprisonment iu county jail may be 

prohibited. 

113. Limit of such prohibition. 


Sec. 105. How ordinances, etc., enforced. By-laws and ordinances 


4 Act of 1852, § 102, as amended April 18,1862; 59 O. L. 55. 

An assessment of taxes made pursuant to an ordinance passed by a 
city council, is not rendered invalid by the omission of the presiding 


officer of the council to sign the ordinance. 
S. 96. 

2 Original. 


Blanchard v. Bissell , 11 O. 


3 Act of 1852, § 39. 





[35] 

of municipal corporations may be enforced by the imposition of fines, 
forfeitures and penalties, on any person or persons offending against or 
violating such by-laws or ordinances, or any of them ; and the fine, 
penalty or forfeiture, may be prescribed in each particular by-law or 
ordinance, or by a general by-law or ordinance, made for that purpose : 
and municipal corporations shall have power to provide, in like man¬ 
ner, for the prosecution, recovery and collection of such fines, penal¬ 
ties or forfeitures. 1 

Sec. 106. Amount of fines, etc. Fines, penalties and forfeitures 
which shall not exceed the sum of fifty dollars for any one specified 
offense, or violation of the by-law or ordinance, or double that sum 
for each repetition of such offense or violation, or which shall not ex¬ 
ceed ten dollars for each day where the thing prohibited or rendered 
unlawful is in its nature continuous in respect to time, shall be deemed 
reasonable ; but where in any by-law or ordinance a greater fine, pen¬ 
alty or forfeiture, is imposed than as above specified, it shall be lawful 


i Act of 1852, § 35. 

Where a charter gave a town council power “to impose reasonable 
fines on all persons offending against the laws and ordinances aforesaid, 
and to cause all such fines and all such forfeitures and penalties as may 
be incurred, under the laws and ordinances of the corporation, to be 
assessed, levied and collected, in such manner as they may prescribe 
and an ordinance provided, that no person should keep "in any house 
within the corporation, at any one time, more than twenty-eight pounds 
of gunpowder, under penaltj r of twenty dollars for every hundred 
weight, and forfeiture to the corporation, and made it the duty of the 
marshal to seize the gunpowder and convey it without the city and sell 
’it for the benefit of the corporation: Held —1. That the town council 
had the power to pass an ordinance to prevent large quantities of gun¬ 
powder from being kept in the city, and that for offending against such 
ordinance they might impose fines, and with equal propriety, they might 
provide for its removal to a safe place without the limits of the corpora¬ 
tion; but they had not the power to declare it forfeited, nor the right 
when it was removed to withhold it from the owner. 2. That no man 
ought to be deprived of his property by forfeiture without having a 
legal investigation; and an ordinance of a corporation which violates 
this principle is not consistent with the spirit of the laws of the United 
States or of this state. Cotter v. Doty , 5 O. 393. 

A charter gave the city council “power to impose fines, forfeitures, 
and penalties on all persons offending against the laws and ordinances 
of said city, and provide for the prosecution, recovery, and collection 
thereof,” and power to prohibit hogs from running at large in the streets. 
And an ordinance declared it unlawful for hogs to be let loose aud run 
at large in the streets, and made it the duty of the marshal to impound 
such hogs and sell them to the highest bidder, and pay the proceeds into- 
the city treasury. Held —1. That the power given by the charter of the 
city to impose a forfeiture does not confer the right to seize and sell with¬ 
out any previous proceedings. 2. That an ordinance of the city council 
sequestering the property of an individual without notice, is invalid. 
Basel) augh v. Safin, 10 O. 31. 

Motion to reconsider the vote by which a resolution was passed, pend¬ 
ing which a motion to adjourn prevails: the motion to reconsider suspends 
the operation of the vote, and that motion may be disposed of at a special 
meeting of council. An acceptance of the resolution in the meantime by 
a party interested therein is a nullity. Cincinnati v. City Passenger B. Co.,. 
Superior Court, Cin., 1868. MS. 



[36] 

for the court or magistrate, in any suit or prosecution for the recovery 
thereof, to reduce the same to such amount as shall he deemed reasonable 
and proper, and to permit a recovery or render judgment accordingly. 1 

Sec. 107. Imprisonment. In addition to the fines and penalties above 
specified, the council may provide for a further penalty of imprisonment 
for any term not exceeding thirty days, and for keeping persons con¬ 
victed at hard labor during their term of imprisonment, at such time 
and place, and in such manner as may be prescribed by ordinance. 1 

Sec. 108. How fines, etc., recovered. Fines, penalties and forfeit¬ 
ures may, in all cases, and in addition to any other mode provided, be 
recovered by suit or action before any justice of the peace or other court 
of competent jurisdiction, in the name of the proper municipal corpo¬ 
ration, and for its use; and in any suit or action where pleading is 
necessary, it shall be sufficient if the petition set forth generally the 
amount claimed to be due in respect of the violation of the by-law or 
ordinance, referring to its title, and the date of its adoption or passage, 
and showing, as near as may be, the true time of the alleged violation. 2 

Sec. 109. Suits must be commenced within one year. All suits or 
prosecutions for the recovery of fines, penalties or forfeitures, or for 
the commission of any offense made punishable by any by-law or or¬ 
dinance of any municipal corporation, shall be commenced within one 
year after the violation of the ordinance, or commission of the offense, 
and not afterward. 3 

Sec. 110. Party to be committed in default of payment. When 
any fine shall be imposed for the violation of any ordinance of the 
corporation, and the same is not paid, the party convicted shall, by 
order of the mayor or other proper authority, or on process issued for 
the purpose, be committed until such fine and the costs of prosecution 
shall be paid, or the party discharged by due process of law. 4 

Sec. 111. Imprisonment, where to be made. When any person 
shall be imprisoned under the provisions of this act, such imprisonment 
shall be in the jail of the corporation, if the corporation be provided 
with a jail; and any corporation not provided with a jail, shall be al¬ 
lowed, for the purpose of imprisonment, the use of the jail of the 
county, at the expense of the corporation, until such corporation shall 
have provided a prison, house of correction, or work-house; and all 
persons so imprisoned in the county jail shall be under the charge of 
the sheriff of the county, who shall receive and hold such persons in 
such manner as shall be prescribed by the ordinances of the corpora¬ 
tion, until discharged by due course of law. 4 

Sec. 112. Imprisonment in county jail may be prohibited. The 
county commissioners may, at their discretion, on giving to the coun- 

i Act of 1852, § 36, as amended April 5,1856; 4 Curwen, ch. 1577. 

. 2 Act of 1852, § 37. 3 Act of 1852, § 38. 

* Act of February 28,1859 (4 Curwen, ch. 1929); Act of 1852, § 55. 

Under a former charter of Cincinnati, (32 O. L. L. 245,) a tine assessed 
by the mayor for the violation of an ordinance, could be collected either 
by commitment of the person on whom the fine was imposed, or by exe¬ 
cution against the chattels. Huddleson v. Baffin, 6 O. S. 604. 



[ 37 ] 

cil of any corporation written notice of their intention so to do, at least- 
ninety days prior thereto, prohibit the use of the county jail for the 
purpose authorized in this chapter. 1 

Sec. 113. Limit of such prohibition. If, within ninety days after 
such notice shall have been given, the council of such corporation 
shall have efficiently provided, by the passage of appropriate ordi¬ 
nances, and the making of the necessary contracts, for the immediate 
erection of a prison, work-house, or house of correction, for the pur¬ 
pose of imprisonment authorized by this act, the said corporation shall 
continue, notwithstanding the notice and prohibition provided for in 
the preceding section, to have the use of the county jail, for the pur¬ 
pose of imprisonment, until such prison, work-house, or house of cor¬ 
rection, shall he erected and ready for use. 1 


CHAPTER XII. 


POWERS AND DUTIES OF MUNICIPAL OFFICERS. 


Section. 

114. Mayo) —his jurisdiction, powers, etc. 

115. Duties, fees, office, etc. 

116. Further duties. 

117. Jurisdiction. 

118. Duties in suppression of disorder, etc. 

119. Supervision of conduct of officers. 

120. Supervision of prisons, etc. 

121. Suspension of officers for neglect, etc. 

122. Shall report to council annually. 

123. Disposition of fines, etc. 

124. Mayor as police judge. 

125. Appeal from decisions of mayor. 

126. Bond, salary, etc., of mayor. 

127. Vacancy, how filled. 

128. Clerk —his duties, etc. 

129. He shall make a record, etc. 

130. And post or publish it. 

131. Shall report to state auditor, etc. 

132. Shall certify to court. 

133. Clerk of court shall record, etc. 

134. Penalty for neglect. 

135. When clerk shall perform duties of 

auditor. 

136. Shall deliver books, etc., to city auditor. 

137. Corporation seal. 

138. Auditor —his powers and duties. 

139. The same. 


Section. 

140. Marshal —his deputies. 

141. His duties, etc. 

142. The same. 

143. Powers, responsibility, fees, etc. 

144. Disposition of fines, etc. 

145. Chief of Police. 

146. Duties of Chief of Police. 

147. Powers, etc., same as marshal. 

148. Compensation. 

149. Shall receive no perquisites. 

150. Disposition of fines, etc. 

151. Treasurer —his powers and duties. 

152. Further duties. 

153. The same. 

154. Compensation. 

155. Duty of county treasurer. 

156. Ex-officio corporation treasurer. 

157. Solicitor —his duties. 

158. The same. 

159. The same. 

160. When tax-payer may institute suit. 

161. Duty of the court. 

162. Solicitor’s report. 

163. His salary. 

164. Street Commissioner, Civil Engineer, and 

Superintendent of Police —their duties. 

165. Their compensation. 


I.—The Mayor. 

Sec. 114. Jurisdiction, powers, etc., of mayor. The mayor shall 
be a conservator of the peace throughout the corporation ; and within 
the limits of the same shall have all the jurisdiction and powers of a 
justice of the peace, in all matters, civil and criminal, arising under 
the laws of the state, and for crimes and offenses his jurisdiction shall 
be coextensive with the county. 2 


1 See note 4, ante, p. 36. 

2 Act of 1852, § 51, as amended March 24, 1860 (4 Curwen, 2117); § 57, 
as amended March 11, 1853 (3 Curwen, ch. 1248); § 68, as amended April 
5,1856 (4 Curwen, ch. 1577). 

The charter of a city authorized its council to levy and collect a special 




[38] 

Sec. 115. Duties, fees, office, etc. The mayor shall keep a docket, 
and shall be entitled to receive the same fees that are or may be al¬ 
lowed justices of the peace for similar services ; and he shall keep an 
office at some convenient place, to be provided by the council, in the 
corporation, and shall he furnished by the council with the corporate 
seal of the corporation, in the center of which shall be the words, 
“mayor of the city of-,” or “mayor of the incorporated vil¬ 

lage of *—,” as the case may be. 1 

Sec. 116. Further duties. The mayor shall perform all the duties 
by the by-laws and ordinances of the council prescribed; and it shall 
be his special duty to see that all ordinances, by-laws and resolutions 
of the council are faithfully obeyed and enforced; and he shall sign 
all commissions, licenses and permits granted by authority of the 
council or authorized by this act, and such other instruments as by 
law or ordinance may require his certificate. 1 

Sec. 117. Jurisdiction. The mayor shall have exclusive jurisdic¬ 
tion of all prosecutions for violations of ordinances of the corporation, 
with full power to hear and determine the same, in all corporations 
where no police court has been or shall be established. His jurisdic¬ 
tion shall extend to cases where the defendant is entitled to a trial by 

tax for the costs and expenses of improving any streets, by an equal 
assessment of the feet front bounding on the street, the mode of collect¬ 
ing to be prescribed by an ordinance of the city council. Held : That an 
ordinance, which in substance provided, that on failure to pay the tax 
when due, the collector should report the delinquent to the mayor, and, 
thereupon, the mayor should issue a summons, as in an action of debt, to 
be served and returned as in other cases, and if it should appear to the 
mayor that such tax had not been paid, he should enter judgment there¬ 
for, against such delinquent owner, with interest and costs, and issue 
execution as in other cases, did not violate the city charter, or the general 
law of the land. Cincinnati v. Gwynne, 10 O. 192; Cincinnati v. Bank TJ. 
S.. 14 O. 605. 

The municipal act of 1852. which conferred on mayors of cities of the 
second class “all the jurisdiction and powers of a justice of the peace 
in all matters civil or criminal,” was not in contravention of the consti¬ 
tution of this state, provided the same was passed by a vote of two- 
tliirds of all the members elected to each house of the General Assembly. 
And in the absence of all showing in the record to the contrary, said act 
will, on error, be presumed to have been passed by such vote. Steamboat 
N. Ind. v. Milliken , 7 O. S. 383. 

“Wefind no difficulty,however,” said Brinkerhoff, J., “in holding that 
mayors of cities are within the number of such ‘ other courts, inferior to 
the supreme court, in one or more counties, as the General Assembly 
may from time to time establish.’ (Const., Art. IV., § 15.) They are 
courts established by the General Assembly by virtue of the fifty-first 
section of the ‘ act to provide for the organization of cities.’ ” 

“ It is true, however, as contended by counsel for plaintiff in error, 
that in order to the validity of those portions of the act referred to^ 
which establish and confer judicial powers on the mayors of cities, the 
act must have been passed by the concurring vote of two-thirds of all 
the members elected to each house of the General Assembly.” Ib. 

Whether the journal may be resorted to for the purpose of determin¬ 
ing that matter, see State v. Moffitt , 5 O. 358-363; State v. McCollister , 11 O. 
46-55; Miller v. State, 3 O. S. 475. 

i See note 2, ante, p. 37. 








[39] 

jury, if a jury be not demanded, and be shall perform such other du¬ 
ties compatible with the nature of his office as the council may, from 
time to time, require. 1 

Sec. 118. Duties in suppression of disorder, etc. The mayor shall 
have and exercise within the corporation limits, all the powers con¬ 
ferred upon sheriffs of the counties, to suppress disorder and keep the 
peace; and shall award and issue all such writs or process as may be 
necessary to enforce the administration of justice throughout the cor¬ 
poration, and for the lawful exercise of his jurisdiction according to 
the usages and principles of law ; and to writs, process, transcripts 
and official papers, of whatsoever kind, he shall subscribe his name 
and affix his seal of office. 1 

Sec. 119. Supervision of conduct of officers, etc. The mayor 
shall supervise the conduct of all the officers of the corporation, in¬ 
quire into and examine the grounds of all reasonable complaints 
against any of them, and cause all their violations or neglect of duty 
to be promptly punished or reported to the proper authority for cor¬ 
rection. 1 v 

Sec. 120. Supervision of prison, etc. The mayor shall also have 
power, and in his absence, the president of the council, to grant to the 
magistrates of adjoining or contiguous townships the temporary use 
of the corporation prison, station or watch houses, to confine criminals 
or other persons dangerous to the peace of the community, until they 
can safely be removed therefrom to the county jail, or other place of 
security. 1 

Sec. 121. Suspension of officers for neglect, etc. The mayor shall 
have power to suspend from office any lieutenants of police, or any 
officer appointed by him under the authority of any law or ordinance, 
for neglect of duty, misconduct in office, or other sufficient cause; 
and may appoint other persons to fill the temporary vacancy occasioned 
thereby; and all such suspensions, and the cause thereof, and all such 
appointments, shall be by him reported to the council for their action 
at the next regular meeting thereafter. 2 


1 Act of April 10,1861, § 2 (68 O. L. 77 ); Act of March 31,1864, § 2 (61 
O. L. 130.) 

2 Act of 1852, § 71, as amended April 18,1854; 4 Curwen, ch. 1451. 

In an action instituted to recover four months’ salary alleged to he due 
plaintiff as superintendent of the city prison, it appeared that he was 
removed from office by the mayor, and by the interposition of the mayor 
and chief of police, excluded therefrom, although ready and willing to 
perform its duties—two questions were presented: first, as to the right 
of the mayor to remove; and, secondly, as to the right of the plaintiff to 
recover the salary, although unlawfully excluded from office, while he 
was engaged in other employment, and the duties of the office were per¬ 
formed by others. Held —1. That the mayor had no right to remove, 
because not granted by legislative enactment. 2. That the power to 
appoint did not imply the power to remove. 3. That the power to make, 
negatives the idea of unmaking and destroying what has been made 
under it, and does not affirm or imply it. 

u Tlie salary of an office,” said Hoadly, J., “is attached to the title to 



[40] 

Sec. 122. Annual report to council. The mayor shall, at the first 
regular meeting of the council in April of each year, and at such other 
times as he may deem expedient, report to the council concerning the 
affairs of the corporation, and recommend such measures as to him 
may seem proper. * 1 

Sec. 123. Disposition of fines , etc. All fines, penalties and for¬ 
feitures which may be collected by the mayor, or which may in any 
manner come into his hands, and all moneys which may be received by 
him in his official capacity, other than his fees of office, shall he by 
him weekly paid over to the treasurer of the corporation; and at the 
first regular meeting of the council in each and every month, he shall 
submit a full statement of all such moneys received, and from whom 
and for what purposes received, and when paid over. 1 ' 

Sec. 124. Mayor as police judge. In all cities in which there is a 
police judge, the mayor shall not, except in eases of urgency or neces¬ 
sity, be required to hear or examine into any criminal charge or case, 
and any warrants issued by the mayor of such cities shall be made re¬ 
turnable before the judge of the police court; and in the unavoidable 
absence of the police judge, the mayor shall, if no acting police judge 
he by him appointed, have power to sit in the police court and perform 
the duties of the judge thereof. 1 

Sec. 125. Appeal from decisions of mayor. Appeals may be 
taken from the decision of the mayor, in the same manner as from 
decisions of justices of the peace ; and any final sentence or conviction, 
before the mayor, may he examined and revised in the same manner 
and by the same tribunal as is provided for the examination and re¬ 
vision of any final sentence or conviction in the police court. 2 3 

Sec. 126. Bond, salary, etc^ of mayor. The mayor shall give 
bond and security as is required by law of justices of the peace, to be ap¬ 
proved by the council; and he shall in addition to the fees he may be 
entitled to, receive such salary, payable quarterly out of the corporation 
treasury, as may be provided by ordinance but the amount of such sal¬ 
ary shall neither be increased nor diminished during his term of office. S: 

Sec. 127. Vacancy, How filled. In the case of the death, resigna¬ 
tion, disability or other vacation of his office, the council may, by the 


the office, and the person entitled thereto has a right to the salary. The 
acts of officers de facto , from the necessity of things, are lawful, but no 
such necessity exists with reference to the pay. On the contrary, it 
would he unjust to the individual, as well as contrary to public policy, to. 
deprive an officer illegally excluded from office of the salary which the 
law requires to be paid him, and make that the reward of usurpation.” 
Judgment for the plaintiff. Homer v. Cincinnati , Superior Court of Cin¬ 
cinnati, General Term, 1864, MS. 

But where the office is abolished, all right to the salary ceases. State 
v. Wright, 7 O. S. 333, 

1 See note 2, ante, p. 39. 

2 Act of 1852, § 51; § 86. Infra , § 179. 

3 Act of 1852, § 57, as amended March 11,1853 (3 Curwen, cli. 1248X; 
Act of April 19, 1861 (58 O. L.. 92); Hatch v. Cincinnati , 17 0. S. 48. 



[41] 

vote of a majority of all the members elected, appoint some suitable 
person within the corporation to act as mayor and discharge the duties 
of such officer until such vacancy be filled or the disability be re ¬ 
moved. 1 

II.—-The Clerk. 

Sec. 128. Duties of clerk, etc. The clerk shall attend all the meet¬ 
ings of the council and make a fair and accurate record of all its pro¬ 
ceedings, and of all rules, by-laws, resolutions and ordinances passed 
by the council; and the same shall be subject to the inspection of 
all persons interested. In case of his absence from any meeting, the 
council shall appoint one of their own number to perform his duties 
for the time being. 2 

Sec. 129. He shall make a record, etc. The clerk shall, on or be¬ 
fore the first Monday in March of each year, make and enter in the 
record book of the corporation, an account of all the receipts and ex¬ 
penditures of the corporation of the preceding year, stating from 
what sources the money was received, and for what purpose expended. 2 

Sec. 130. And post or publish it. He shall cause a copy of such 
account to be posted up, at the places of holding elections for officers 
of the corporation, on the morning of the first Monday of April, an¬ 
nually ; or the council may, by resolution, authorize him to publish 
the same in some newspaper published in the corporation, as soon 
after the first Monday of April as may be practicable. 3 

Sec. 131. Shall report to state auditor , etc. He shall, on or before 
the first Monday in June in each year, report to the auditor of state 
the aggregate expenses of such corporation for the preceding year, 
under the following heads : school, police, streets, bridges, fire de¬ 
partment, lights, poor, salaries and interest; and also the amount 
of the general corporation tax for all the preceding objects, and for 
any others not enumerated, and the special taxes of the corporation 
for the same period; any corporation clerk who shall neglect to 
make report as above provided, shall forfeit and pay the sum of one 
hundred dollars, to be recovered before any court having jurisdiction 
of the subject matter, in the name and for the use of the corporation. 3 

Sec. 132. Shall certify to the court. The clerk shall certify to the 
court of common pleas of the county in which the corporation is sit¬ 
uate, the election of every officer within the corporation having power 
to discharge the duties of a justice of the peace, or to take the ac¬ 
knowledgment of deeds, or to certify to depositions or affidavits to be 
used without the limits of such corporation, with the date of such elec¬ 
tion, and the time when such officer became legally qualified to dis- 

1 See note 3, ante, p. 40. 

2 Act of 1852, § 48, as amended February 5, 1861 (58 O. L. 6); § 69, as 
amended April 29, 1862 (59 O. L. 69); § 59. 

A party interested is not concluded by such record, if improperly 
made, but may show the truth by the papers or entries. 7 0.1 pt. 257; 
6 0.426; 18 0. 331,469. 

3 Act of April 8,1856, § 13; 4 Curwen, ch. 1572, 



[ 42 ] 

charge the duties of such office; which certificate shall he made within 
ten days after such qualification. 1 

Sec. 133. Clerk of court shall record, etc. It shall he the duty of 
the clerk of the court of common pleas to record the same in the hook 
in which the record of the elections and qualifications of justices of 
the peace are kept; and the same fees shall he allowed to the officers 
certifying and recording the same, as are allowed for certifying and re¬ 
cording the election and qualification of justices of the peace. 1 

Sec. 134. Penalty for neglect. Every clerk whose duty it shall he 
to make such certificate, or to record the same when presented for re¬ 
cord, who shall neglect or refuse to perform the duties enjoined by 
this chapter, shall pay to the treasurer of the corporation, the election 
of whose officer shall thereby remain uncertified or unrecorded, the sum 
of fifteen dollars, to he recovered in an action of debt, at the suit of 
said corporation; and also he liable for all damages arising from such 
neglect or refusal. 1 

Sec. 135. When clerk shall perform duties of auditor, etc. In 
all corporations in which there is no city auditor, the clerk shall per¬ 
form the duties of auditor, under the direction of the council, and all 
such other duties pertaining to his office as shall by the council he 
prescribed; and he shall have the charge and custody of all the 
laws and ordinances, and the hooks, records and papers of the corpo¬ 
ration, and shall carefully keep and preserve the same in his office, and 
shall certify all transcripts that may he required of any record or 
papers in his office, and shall he entitled to receive therefor the same 
fees as other officers for similar services. 2 

Sec. 136. Shall deliver books, etc., to city auditor. Upon the 
creation of the office of city auditor, the clerk shall, upon demand, 
deliver to the incumbent of such office, when duly qualified, all the 
records, hooks, papers, vouchers and documents of every description, 
in his possession, pertaining to the duties of such auditor. 3 

Sec. 137. Corporation seal. The council shall cause to he pro¬ 
vided for its clerk’s office, a seal, in the center of which shall be the 
name of the corporation, and around the margin the words “City 
Clerk,” or in case of an incorporated village, the words “ Corporation 
Clerk; ” which seal shall he affixed to all transcripts, orders, certifi¬ 
cates or other papers which it may be necessary or proper to authenti¬ 
cate under the provisions of this act, or of any ordinances of the cor¬ 
poration. 4 

III.—The Auditor. 

Sec. 138. Powers and duties of auditor. The auditor shall have 
power to administer oaths, and take affidavits, and such other powers, 
and shall perform such duties, as may he prescribed by law or any or- 


1 Act of April 3,1837; 1 Curwen, ch. 163. 

2 Act of 1852, § 39; § 69, as amended April 29,1862; 59 O. L. 69. 

s Original. * Act of 1852, § 60. 




[ 43 ] 

dinance of the corporation, not inconsistent with the constitution and 
laws of the state, and not incompatible with the nature of his office. 1 

Sec. 139. The same. He shall have charge of all hooks, records 
and papers connected with his office, and shall carefully keep and pre¬ 
serve the same in his office, and the same shall be subject to the in¬ 
spection of all persons interested. 

IV.—The Marshal. 

Sec. 140. The marshal—his deputies. The marshal shall he the 
principal ministerial officer of the corporation, and he shall have power 
to appoint one or more deputies, for whose official acts he shall he re¬ 
sponsible, and by whom he may execute all writs, process and or¬ 
ders to him directed. 2 

Seo. 141. His duties. He shall execute and return all writs and 
process to him directed by the mayor, and shall, by himself or deputy, 
attend on the sittings of said courts to execute the orders and process 
thereof, and to preserve order therein ; and his jurisdiction and that of 
his deputies, in the execution of all such writs and process, and in 
criminal cases and in cases of a violation of the ordinances of the cor¬ 
poration, shall be coextensive with the county. 2 

Sec. 142. The same. He shall suppress all riots, disturbances and 
breaches of the peace, and to that end may call upon the citizens to 
aid him; he shall arrest all disorderly persons in the corporation, and 
pursue and arrest any person fleeing from justice in any part of the 
state; he shall arrest any person in the act of committing any offense 
against the laws of the state or the ordinances of the corporation, and 
forthwith bring such person before the mayor, or other competent au¬ 
thority, for examination or trial; and he shall receive and execute 
any proper authority for the arrest and detention of criminals fleeing 
or escaping from other places or states. 1 

Sec. 143. Powers, responsibilities , fees , etc. He shall have, in 
the discharge of his proper duties, like powers, be subject to like re¬ 
sponsibilities, and shall receive the same fees as sheriffs and constables 
in similar cases, for services actually performed by himself or his depu¬ 
ties, and such additional compensation as the council may prescribe ; 
but in no case shall he receive any fees or compensation for services 


1 Act of April 8, 1856, § 4, as amended March 21,1861; 58 O. L. 39. 

2 Act of 1852, §52; §70; § 73, as amended April 24, 1854 ; 4 Curwen, 
ch. 1460. See Code of Criminal Procedure of 1869, §§ 21-29. 

An officer clothed with a magistrate’s warrant, went out of the state 
and arrested the accused. Held: That in so doing, he violated both pub¬ 
lic and private right, and that he could maintain no action for his services. 
Smith v. Portage Co ., 9 O. 25. 

An officer who arrests a thief, by virtue of a magistrate’s warrant 
delivered to him for the purpose, can not maintain an action to recover 
a reward offered by the injured party for the apprehension of the thief 
and the recovery of the stolen property. Gillmore v. Lewis , 12 O. 281; 
Rea v. Smith , 2 Handy, 193. See also as to the power to arrest, a full 
collection of the cases by J. T. Worthington, in Jones v. State, 20 O. 38. 



[ 44 ] 

rendered by any watchman or other officer, nor shall he receive for 
guarding, safe-keeping or conducting into the mayor’s or police court, 
any person arrested by himself or deputies, or by any other officer, a 
greater compensation than twenty cents. 1 

Sec. 144. Disposition of fines, etc. All fees, costs, fines and pen¬ 
alties by him collected, shall immediately be paid over to the mayor, 
and he shall report to the council monthly the amount thereof, and 
from whence and for what purpose collected and when paid over. 1 

V. —Chief of Police. 

Sec. 145. Chief of police. In all corporations in which there is no 
marshal, the duties imposed on that officer by this act shall be per¬ 
formed by the chief of police. 2 

Sec. 146. His duties. He shall be under the direction of the 
mayor, and shall execute all process to him directed by the mayor or 
judge of the police court, and shall, by himself or some lieutenant of 
the police to be by him designated, attend on the sittings of said 
courts to execute the orders and process thereof, and preserve order 
therein. 2 

Sec. 147. Powers, etc., same as marshal. He shall have the same 
powers, perform the same duties, and be subject to the same responsi¬ 
bilities as are imposed on the marshal in the preceding division of this 
chapter. 2 

Sec. 148. Compensation. He shall receive for his compensation 
from the corporation such sum, payable quarterly, as the council may 
by ordinance prescribe, not exceeding fifteen hundred dollars per an¬ 
num, and from the county, in state cases, not exceeding five hundred 
dollars per annum, to be allowed by the county commissioners. 2 

Sec. 149. Shall receive no perquisites. In no case shall he, or the 
lieutenant or watchman who may be detailed by him to attend on the 
police court, demand or receive any perquisite, fee or reward other than 
is authorized by law. 2 

Sec. 150. Disposition of fines, etc. All fines, penalties and costs 
collected by the chief of police, lieutenant or watchman, shall be paid 
over to the clerk of the police court, and the same fees shall be charged 
and collected by the chief of police from persons convicted, as the mar¬ 
shal is herein authorized to charge and collect for similar services. 2 

VI. —The Treasurer. 

Sec. 151. Powers and duties of treasurer. The treasurer, in ad¬ 
dition to the ordinary and usual duties of such officer, shall have such 
powers and perform such duties as are prescribed in this act or may be 
required by any ordinance of the corporation, not inconsistent with 
this act and not incompatible with the nature of his office. 3 


1 See note 2, ante, p. 43. 

2 Act of 1852, § 74; Act of March 14, 1859, § 5, as amended March 8, 
1860; 4 Curwen, ch. 2070. 

3 Act of 1852, § 72; Act of May 13,1868; 65 0. L. 186. 



[ 45 ] 

Sec. 152. Further duties. He shall demand and receive from 
the county treasurer, all taxes levied and assessments made and 
Certified to the county auditor by authority of the council, and by 
said auditor placed on the tax duplicate for collection, and from ail 
persons authorized to collect or required to pay the same, all moneys 
accruing to the corporation from judgments, fines, penalties, forfeit- 
ures, licenses, and costs taxed in the mayor’s and police court, and 
all debts, of whatever kind, due the corporation, and disburse the 
same on the order of such person or persons as may be authorized by 
ordinance to issue orders for the same. 1 2 

Sec. 153. The same. The treasurer shall settle and account with 
the council quarterly, and as much oftener as the council shall by res-* 
olution or ordinance require; and he shall report annually to the coun- 
cil, at the first regular meeting thereof, in April, the condition of the 
finances of the corporation and the amount received by him and the 
sources whence received, and the disbursements by him made and on 
what account, during the year preceding the first day of April, and 
such account shall exhibit the balance due on each particular fund 
which may have come into his hands during the year. 

Sec. 154. Compensation. The treasurer shall be allowed, as compen¬ 
sation for the disbursement of all moneys, other than school funds, 
which shall come into his hands under the provisions of this act, such 
sum as the council may allow, not exceeding the following in any one 
year: 

On the first five thousand dollars, two per centum. 

On the next five thousand dollars, one and a half per centum. 

On the next ten thousand dollars, one-half of one per centum. 

And on all sums that may be disbursed by him in excess of the 
above amounts, one-fifth of one per centum, payable out of any money 
in the corporation treasury not otherwise appropriated, and no other 
•compensation shall be allowed corporation treasurers for services per¬ 
formed under this act. 3 

Sec. 155. Duty of county treasurer. The county treasurer shall, 
on the first Monday of February and August in each year, pay over 
to the treasurer of the corporation all moneys received by him up to 
said dates, arising from taxes levied and assessments made belonging 
to the corporation. 3 

Sec. 156. The same as ex-officio corporation treasurer. In all 
corporations in which the county treasurer is by law made ex-officio 
the corporation treasurer, such county treasurer, if he has already en¬ 
tered upon the duties of his office, shall continue to act as such corpo¬ 
ration treasurer until the expiration of his term of office; all moneys 
in the hands of such county treasurer acting ex-officio as corporation 
treasurer, shall, upon the termination of his office, be transferred to 
the corporation treasurer. 1 


1 Act of March 14,1867; 64 0. L. 52. 

2 Act of May 13,1868 (65 O. L. 186); April 29,1862 (59 0. L. 69.) 

3 Act of 1852, § 93. 



[ 46 ] 

VII.—The solicitor. 1 

Sec. 157. Duties of solicitor. The solicitor shall, whenever re¬ 
quired so to do by resolution of the council, prosecute for and in be¬ 
half of the corporation all complaints, suits and controversies in which 
the corporation is a party, except cases before the police court where 
there is a prosecuting attorney for such court, and such other suits, mat¬ 
ters and controversies as shall, by resolution or ordinance, he directed. 

Sec. 158. The same. He shall pay over to the treasurer all moneys 
which may come into his hands belonging to the corporation, or which 
may come into his hands by way of fines, forfeitures, costs or other¬ 
wise, and take the treasurer’s duplicate receipts therefor, one of which 
he shall file with the clerk of the corporation, or in case there be an 
auditor, then with such auditor. 

Sec. 159. The same. He shall apply to a court of competent ju¬ 
risdiction for an order or injunction to restrain the misapplication of 
the funds of the corporation, or the abuse of its corporate powers, or 
the execution or performance of any contract made in behalf of the 
corporation in contravention of the laws or ordinances governing the 
same, or which was procured by fraud or corruption. 

Sec. 160. When tax-payer may institute suit. In case the solic¬ 
itor shall fail, upon the request of any of the tax-payers thereof, to 
make the application provided for in the preceding section, it shall be 
lawful for such tax-payer to institute a suit in his own name on behalf 
of the corporation. 1 , 

Sec. 161. Duty of the court. If the court hearing such case shall 
be satisfied that such tax-payer had good cause to believe that his al¬ 
legations were well founded, or if the same are sufficient in law, it 
shall make such order as the equity and justice of the case shall de¬ 
mand ; and in such case he shall be allowed his costs, including a 
reasonable compensation to his attorney. 

Sec. 162. Solicitor’s report. The solicitor shall make a report 
annually to the council at their first regular meeting in April, of the 
business of his office and the moneys by him collected during the year 
preceding the first day of April, and such other matters as he may 
think proper in order to promote the good government and welfare of 
the corporation. 

Sec. 163. His salary. He shall receive such stated salary, paya¬ 
ble quarterly out the corporation treasury, and such fees or compensa¬ 
tion for particular services, as the council may prescribe. 

VIII.—Street commissioner, fire engineer, civil engineer and 
superintendent of markets. 2 

Sec. 164. Duties of street commissioner, civil engineer and super- 

1 Act of March 5,1860, § 13; 4 Curwen, ch. 2068; Act of 1852, 6 61, as 
amended April 29,1854. 

2 Act of 1852, § 72; Act of April 8, 1856, § 7, as amended April 3, 1863; 




[ 47 ] 

intendent of market. The street commissioner, fire engineer, civil en¬ 
gineer, and superintendent of markets, shall each severally perform 
the duties prescribed by this act, and such other duties not incompati¬ 
ble with the nature of their office, as the council may by ordinance 
require. 

Sec. 165. Their compensation. They shall each receive such com¬ 
pensation tor their services, by fees or salary, or both, as may be pro¬ 
vided by ordinance. 


CHAPTER XIII. 

JURISDICTION AND POWERS OF POLICE COURTS. 


Section. 

100. Police Judge —liis powers. 

167. His jurisdiction. 

1(38. The police court. 

169. Prosecutions, how brought. 

170. Compensation of police judge. 

171. Police court always open, etc. 

172. Jurors in police court. 

173. Rules of practice, etc. 

174. Substitute for police judge. 

175. His oath. 

176 Record of proceedings. 

177. Fees. 

178. Fees of witnesses. 

179. Writ of error to common pleas. 

180. Return on such writ. 


ECTION. 

181. What common pleas court may do. 

182. Clerk of Police Court —his dut-ies. 

183. Ilis oath and bond. 

184. Ilis salary, etc. 

185. His powers. 

186. Substitute for clerk. 

187. Further duties of clerk. 

188. Shall not be concerned as counsel. 

189. Shall account for fines, etc. 

190. Disposition of surplus fees. 

191. Prosecuting Attorney of Police Court- 

duties. 

192. Ilis salary. 

193. Substitute for prosecuting attorney. 


S 


I.—Police Judge. 

Sec. 166. Powers of police judge. The police judge shall have in 
all criminal cases the same power and jurisdiction that are or may be 
by law vested in justices of the peace of the county ; he shall also 
have power to take acknowledgments of deeds and other instruments 
of writing; to administer oaths, and take and certify depositions. 1 

i Act of 1852. § 83, as amended April 29, 1802; 59 (). L. TO. 

The 83d section of the municipal corporation act of 1852 conferred upon 
the police court of cities of the lirst class jurisdiction to try and determine 
a charge of obtaining money or goods by false pretenses. Dillingham v. 
State , 5 O. S. 280. 

Such charge might be preferred by information filed in that court, and 
by tiie prosecuting attorney thereof, lb. 

The constitutional right of trial by jury is not infringed when the 
option is given to the accused to have the issue tried by the court or the 
jury, and be submits the cause to the court, lb. 

As to the class of offenses that may be prosecuted in the police court, 
the remarks of the judge, in delivering the opinion in that case, are im¬ 
portant. Ranney, J.. said: ‘‘By the lOih section of the 1-t article of the 
Constitution, a presentment or indictment of a grand jury is dispensed 
witli ‘ in cases of petit larceny and other inferior offenses.’ How such of¬ 
fenses should thereafter be prosecuted, depended entirely upon legislative 
discretion. But, it is said, this dispensation only extends to offenses in¬ 
ferior in grade to petit larceny. We can not adopt such a construction. 
Indeed, to do so, would be to leave the whole matter to mere conjecture. 
It is very evident that petit larceny is simply named as one of a class of 
offenses; and equally so, that the class was intended to embrace all of- 


✓ 






[48] 

Sec. 167. His jurisdiction. He shall have jurisdiction of all vio¬ 
lations of the ordinances of the city, and of all cases of petit larceny 
and of inferior offenses which do not require an indictment by a grand 
jury, committed within the limits of the city or within four miles 
thereof. The power to hear and determine such offenses shall extend 
to cases where the accused is entitled to a trial by jury, if a jury be 
waived. 1 

Sec. 168. The police court. He shall have power to hold a court, 
to be styled “ The Police Court,” which shall be a court of record ; it 
shall have a seal to be provided by the city council, with the name of 
the state in the center, and the style of the court around the margin. 
He- shall have power to issue process, to preserve order and punish con¬ 
tempts ; to summon and empannel jurors, and such further powers in¬ 
cident to a court of common pleas, as may be necessary for the exer¬ 
cise of the jurisdiction herein conferred. 1 

Sec. 169. Prosecutions, how brought. Prosecutions in said court 
for offenses against the laws of the state, shall be brought and con¬ 
ducted in the name of the state, and prosecutions for the violation of 
city ordinances shall be brought and conducted in the name of the city. 1 


fenses for which a punishment less than imprisonment in the peniten¬ 
tiary is provided. This was a classification so long used in our laws, and 
so well understood, as to leave no doubt that it was the one intended to 
be adopted by the convention.” Ib. 

Whether the police court has the power to naturalize aliens does not 
seem to have been determined. It has, by the provisions of this act, three 
of the four requisites specified in the act of Congress; that is, it is a court 
of record, and has a seal and clerk. The only question is whether it has 
common law jurisdiction, within the meaning of the act of 180*2. 2 Stats, 
at Large, 153 The argument in favor of the jurisdiction is substantially 
this: 1. The police court has power to fine and imprison for contempts. 
2. Although we have not in Ohio any common law offenses, yet the crime 
of larceny and others within the final jurisdiction of the police court are 
substantially the same as at common law, and a jury of twelve men is 
guaranteed by the constitution. 3. The requisite of the act of Congress 
is not that the tribunal shall be a common law court in any general 
sense, but any court of record having jurisdiction, however limited, of a 
common law origin, and a seal and clerk, has the power to admit aliens 
to citizenship. 

The meaning of the phrase “common law jurisdiction,” in that pro¬ 
vision, was discussed at some length in cases wherein the jurisdiction of 
the Ohio probate courts, over the'subject, was considered. The question 
of the power of those courts in that respect has not been finally determ¬ 
ined. In Ex parte Smith, 3 Law Gaz. *237, U. S. Circuit Court, S utliern 
District of Ohio, McLean, J.. presiding, and Ex parte Wingard. 1 West. L. 
Monthly, 453. S. C. 4 Law Gaz. 1(59. the cases on the subject (8 Met. 168; 
15 B. Monroe. 72*2; 18 lb. 693; 30 Barb. 588; Brightley’s Dig. U. S. S. C. 
Peps., Tit. Alien) were to some extent examined, and the conclusion was 
reached that our probate courts possess such jurisdiction. But the Dis¬ 
trict Court of Hamilton county (2 Law Gaz. 318) and Mr. Attorney Gen¬ 
eral McCook (MS.) were of a different opinion. 

1 See note 3, ante, p. 47. 

That offenses against municipal corporations are regarded as quasi crim¬ 
inal. and may be prosecuted in the name of the corporation, see MarkU 
v. Akron , 14 O. 586. 








[49] 

Sec. 170. Compensation of police judge. The judge of the po¬ 
lice court shall receive no fees or perquisites whatever, but shall re¬ 
ceive such annual compensation, to be paid quarterly out of the city 
treasury, not exceeding two thousand dollars, as the council may pre¬ 
scribe, and such further compensation payable out of the county treas¬ 
ury, as the county commissioners may deem proper; but in cities of 
the first class, having a population of one hundred thousand inhabit¬ 
ants, such judge shall receive not less than fifteen hundred dollars per 
annum from the city treasury’ and not less than fifteen hundred dollars 
per annum from the county treasury ; nothing in this section shall pro¬ 
hibit said judge from receiving the fees for taking acknowledgment of 
deeds, depositions and affidavits, allowed to justices of the peace for 
like services. 1 

Sec. 171. Police court always open, etc. The police court shall 
always be open for business; but may adjourn from day to day or 
from time to time; and the mode in which business shall be brought 
before the court shall be fixed by ordinance of the city council or rule 
of the court. 2 

Sec. 172. Jurors in police court , etc. The jurors in said court 
shall have the qualifications of jurors in the court of common pleas, 
and shall be summoned and empanneled in accordance with an ordi¬ 
nance of the city council, or in case the council shall fail to pass such 
ordinances, in accordance with a rule of court, and said court shall 
have power to compel the attendance of witnesses, jurors and parties. 3 

Sec. 178. Rules of practice , etc. The judge shall adopt such 
rules of practice and procedure as will give all parties a proper state¬ 
ment of any charge against them, and a full opportunity of being 
heard; but shall at the same time dispatch the business with all con¬ 
venient speed; and all rules of the court shall be written or printed, 
and posted in the room in which it holds its sittings. 2 

Sec. 174. Substitute for police judge. In the absence, inability 
or disability of the judge, it shall be lawful for the mayor to select a 
reputable member of the bar, residing within the city, to hold said 
court, and for the time being such person shall have the jurisdiction 
and powers conferred upon judges of police courts, and shall be styled, 
“ acting police judge,” in which style he shall sign all process and 
records during the time he shall serve, and shall perform all other 
official acts pertaining to said office. 4 


1 Act of 1852, § 84, as amended April 10, 1867; 64 O. L. 121. 

2 Act of April 28, 1854, § 25, as amended April 16, 1867; 64 O. L. 214. 

3 Act of 1852, § 82, as amended April 28, 1854. 

4 Act of February 21,1862, as amended April 17, 1867; 64 O. L. 251. 

In Nesmith v. State , Hamilton County Common Pleas (July, 1869), Cox. 
J., in giving a construction to the corresponding provision of the former 
law, held that the judgment of such “acting police judge” was void, his 
appointment being in violation of the constitution. Art. IV., $ 10, that all 
judges, other than those expressly provided for in the constitution, must 
be elected by the electors of the judicial district for which they may be 

4 



[50] 

Sec. 175. His oath. Before the person so appointed shall enter upon 
the duties of acting judge, he shall take an oath to support the consti¬ 
tution of the United States, the constitution and laws of the state of 
Ohio, the charter and ordinances of the city, and an oath of office. * 1 

Sec. 176. Record of 'proceedings. In cases where the police court 
is required to recognize the defendant to appear before any other court, 
the proceedings and recognizance shall be recorded as is required of 
justices of the peace in like cases. 2 

Sec. 177. Fees. The fees in said police court shall he the same in 
state cases as are or may he allowed by law to justices of the peace, 
or in the probate court in like cases; and in cases for the violation of 
ordinances, such fees not exceeding fees for services of a like nature in 
state prosecutions, as the council shall by ordinance prescribe. 2 

Sec. 178. Fees of witnesses. Witnesses in the police court shall 
be allowed the same fees in cases arising from a violation of the ordi¬ 
nances, as are allowed in like cases before justices of the peace, which 
shall be paid in the same manner ; and in state cases the same fees, 
which shall he paid in the same manner as in like cases in the court 
of common pleas. 2 

Sec. 179. Writ of error to common pleas. Any final conviction 
or sentence of the police court, may be examined into by the court of 
common pleas on writ of error, which may be allowed by such court 
or judge thereof for sufficient cause, and proceedings may be stayed as 
may be deemed reasonable. 3 

Sec. 180. Return on such writ. The police court shall return on 
such writ of error all matters of record or on file touching the pro¬ 
ceedings, or a transcript thereof, and any facts which may have been 
noted by the judge or certified in the nature of a bill of exceptions at 
the time of trial. 3 

Sec. 181. What common pleas court may do. On such return the 
court of common pleas may make such order as right and justice may 
require, and may either discharge the party or set aside the conviction 
and order another trial, or dismiss the writ of error and order a pro¬ 
cedendo ; but no conviction or sentence of any police judge shall be 
set aside or disregarded for the want of any technical averment that 
any matter or thing is within his jurisdiction 3 

created; but that in accordance with the case of the Logan Branch Bank, 

1 O. S. 432, it was the duty of the court to dismiss the case for want of 
jurisdiction, without reversing the judgment, as the decision of such 
“ acting police judge ” was not the judgment of a court. MS. 

On the other hand, in the case of Ohio ex rel. v. Weber, before Judo-e 
Storer, of the Superior Court of Cincinnati, on habeas corpus (Au°-ust, 
1869), it was held that the sentence of such “ acting police judge ” was in 
any view, the act and judgment of a judge defacto, and therefore bindino* • 
but that the statutory provision for such appointment was authorized by 
the constitution, and hence the officer was a judge de jure. MS. 

1 See note 4, ante, p. 49. 

2 Act of April 28, 1854; 4 Curwen, ch. 1460. 

a Act of 1852, § 86. 



11.—Clerk of Police Court. 

Sec. 182. His duties. The clerk of the police court shall perform 
like duties as the clerk of the court of common pleas in like cases. * 1 

Sec. 183. His oath and bond. He shall, before entering upon the 
duties of his office, take an oath of office, and execute bonds, with 
sufficient surety, to the city and county commissioners of the county 
in which said court is situated, in such sums as the council of said 
city and the county commissioners of said county may prescribe, con- 
ditioned for the faithful performance of the duties of his office. 1 

Sec. 184. His salary , etc. He shall receive for his services in city 
Cases, a fixed salary, to be prescribed by ordinance of the council, and 
for state cases prosecuted in said court, such further allowance, not ex¬ 
ceeding eight hundred dollars per annum, as the county commissioners 
of such county may deem proper. 1 

Sec. 185. His powers. He shall have power to administer oaths, 
and to appoint two or more deputies, to be approved by the council, 
who shall receive such reasonable compensation, not exceeding fifteen 
hundred dollars per annum, as the council shall prescribe. 1 

Sec. 186. Substitute for clerk. In case of temporary inability of 
the clerk, when no deputy shall have been appointed, the judge may 
appoint some competent person, who, upon giving bond and taking the 
oath prescribed, shall perform all the duties, and have all the powers 
imposed upon said clerk; and he shall be paid out of the city treas¬ 
ury, on the order of the council, at the same rate as the clerk is paid 
for similar services; but such appointment shall be valid only until 
the inability of the clerk is removed. 1 

Sec. 187. Further duties of clerk. The clerk shall file and pre¬ 
serve all informations, process, motions and papers of every descrip¬ 
tion, used in said court, and keep a journal of all the doings of the 
court, which shall be read each day, and, if necessary, corrected and 
signed by the judge; and in all cases where final judgment is given, 
the journal entry of each case, with the papers filed, shall be deemed 
the record of that case. 2 

Sec. 188. Shall not be concerned as counsel. He shall not be con¬ 
cerned as counsel or agent in the prosecution or defense of any case 
before the court. 

Sec. 189. Shall account for fines , etc. He shall, on the first day 
of every month, or within three days thereafter, account, under oath, 
for all fines, penalties, fees and costs, imposed by the court in city 
cases, to the city auditor, and in state cases, to the county auditor, 
and shall pay into the city and county treasuries, respectively, the 
amount then received by him. 2 

Sec. 190. Disposition of surplus fees. If there be any surplus of 
such fees, collected for the city after payment of the expenses of the 


• Act of April 28,1854, § 25, as amended April 16,1867; 64 0. L. 214. 

i Act of April 28, 1854; 4 Curwen, ch. 1460. 




Sec. 191. His duties. It shall he the duty of the prosecuting 
attorney of the police court to prosecute all city and state cases 
brought before said court, and he shall perform like duties, as far as 
the same are applicable to such police courts, as are required by pros¬ 
ecuting attorneys of the state. 1 

Sec. 192. His salary. He shall receive for his services in city 
cases such salary, to be paid out of the city treasury, as the council 
shall prescribe, and the county commissioners of any county in which 
there is or may be a police court established, shall allow him such 
further compensation, not to exceed eight hundred dollars per annum, 
as may be deemed right and proper, which shall be paid out of the 
county treasury. 1 

Sec. 198. Substitute for prosecuting attorney. In case of the 
temporary inability of the prosecuting attorney of the police court, 
the judge shall appoint some competent member of the bar to perform 
the duties of the office, until such disability is removed, and no 
longer, and he shall be paid out of the city and county treasuries a 
compensation proportionate to the time he may serve, and the amount 
so paid may, at the discretion of the judge, be deducted from the sal¬ 
ary of the prosecuting attorney. 2 


CHAPTER XIY. 


THE MAYOR’S COURT. 3 


Section. 

197. Costs and fees. 

198. Powers of mayors same as justices. 


Section. 

194. Juries in mayor’s court. 

195. Talesmen. 

199. Duties and compensation of jurors. 


Sec. 194. Juries in mayor's court. The council of any city or in¬ 
corporated village, shall have power to provide, by ordinance, for the 
summoning and empanneling of juries by the mayor; such jurors 
shall have the qualifications of jurors in the court of common pleas, 
and may be empanneled to try such cases arising from violations of. 
ordinances as may be prescribed by the council. 4 

i See note 2, ante, p. 51. 2 Original. 

3 Act of 1852, § 68, as amended March 24,1860 (4 Curwen, ch. 2117); Act 

of April 10,1861 (58 O. L. 77); Act of March 31, 1864 (61 O. L. 130.) 

4 Good, judicious persons, having the qualifications of electors, have the 
qualifications of jurors in the court of common pleas. Act of Feb. 9, 
1831 (3 Chase, 170*5); Act of March 27, 1866 (63 O. L. 53.) 

Active members of fire engine, hook and ladder companies, or other 
companies for the extinguishment of fire or the protection of property at 
fires, and all clergymen and priests, physicians, and all public officers, 




[53] 

Sec. 195. Talesman. When any juror so summoned shall, upon 
challenge or inquiry, he found incompetent, he may he dismissed, and 
a talesman called hy the marshal or officer attending the mayor’s 
court at the time, and the panel filled in the same manner as panels 
are filled in the court of common pleas. 

Sec. 196. Duties and compensation of jurors. Jurors summoned 
to serve in the mayor’s court, shall perform like duties and he subject 
to like rules and penalties as jurors before justices of the peace; and 


excepting in incorporated villages having less than twelve hundred in¬ 
habitants, are excused from serving as jurors. Act of March 13,1859; 
4 Curwen, ch. 1991. 

Any person who shall serve as a juror, grand or petit, or both, in the 
courts of this state, for three weeks in any year, shall be exempt from 
further service as a juror during the balance of such year. Act of April 
17, 1867; 64 0. L. 254. 

No person holding office under the act “ authorizing the appointment 
of metropolitan police commissioners in cities of the first class, with a 
population of less than one hundred thousand inhabitants at the last fed¬ 
eral census,” is subject to jury duty. Act of May 1,1866; 63 O. L. 104. 

A juror may be challenged who has been convicted of any crime which, 
by law, renders him disqualified to serve on a jury: or who has an inter¬ 
est in the cause; or who has an action depending between him and the 
defendant; or who is the employer, employe, counselor, agent, steward, 
or attorney of the defendant, or who is subpenaed in the cause as a wit¬ 
ness; or who is of kin to the defendant; and the same shall be considered 
as a principal challenge, and the validity thereof tried by the court. A 
juror may be challenged on suspicion of prejudice against or partiality 
for the defendant, or for want of a competent knowledge of the English 
language, or any other cause that may render him at the time an unsuit¬ 
able juror; and the validity of such challenge shall be determined by the 
court, and each party may peremptorily challenge two jurors. Act of 
Feb. 9,1831, § 14, as amended February 25,1859: 4 Curwen, ch. 1923. Any 
juror in any county where there is a"city of the first or second class, or 
incorporated village having a population of over three thousand, who 
shall have served once already on a jury as talesman in the trial of any 
cause in any court of record in the county within the preceding twelve 
months, may be challenged for such cause. Act of April 13, 1865; 62 O. 
L. 144. A juror may be challenged who has formed or expressed an 
opinion as to the guilt or innocence of the accused ; or who is a relation 
within the fifth degree to the person alleged to be injured, or attempted 
to be injured, by the offense charged, or to the person on whose complaint 
the prosecution was instituted, or to the defendant; or has served on a 
jury which was sworn in the same cause against the same defendant, and 
which jury either rendered a verdict which was set aside or^ was dis¬ 
charged after hearing the evidence; or that he has served as a juror in a 
civil case brought against the defendant for the same act. All challenges 
for cause shall be tried by the court on the oath of the person challenged, 
or on other evidence. Code of Criminal Procedure, § 134; 66 O. L. 307. 

Where a person called as a talesman has already served as a tales-juror 
at the same term, so far as to have been sworn and heard all the evidence 
In the case, although the case was then compromised and the jury dis¬ 
charged without a verdict, he is within the causes for challenge enumer¬ 
ated in the act of February 25,1859, “to amend section fourteen of an act 
entitled an act relating to juries,” etc. Famulener v. Anderson, 15 O. S. 473. 

Witnesses before justices of the peace are entitled to fifty cents per day, 
and five cents per mile from their place of residence to the place of hold¬ 
ing the court. Act of March 16, 1852; 3 Curwen, ch. 1144. 



[54] 

witnesses subpenaed to give testimony in said court, and jurors, shall 
receive the same compensation as witnesses before justices of the peace* 
In cases for the violation of ordinances, their fees shall be paid, on 
the certificate of the mayor, out of the corporation treasury, and in 
state cases, on like certificate, out of the county treasury. 

Sec. 197. Costs and fees. The costs of the mayor and marshal, in 
all cases for the violation of ordinances, shall be fixed by ordinance, 
but in no case greater than the fees for similar services before justices 
of the peace; and their fees, including the fees of jurors and witnesses, 
shall, in case of conviction, be taxed against the party or parties con¬ 
victed, and in case of acquittal, except the fees of mayor and marshal, 
against the corporation. 

Sec. 198. Powers of mayors same as justices. The mayor shall 
have like power to punish, contempts and compel the attendance of 
jurors and witnesses, and to establish rules for the examination and 
trial of all cases brought before him, as is or may he conferred upon 
justices of the peace. _ 


CHAPTER XV. 

GENERAL POWERS OF MUNICIPAL CORPORATIONS. 1 


Section. 

199. General sanitary and other powers of municipal corporations. 

Sec. 199. General sanitary and other powers of municipal corpo¬ 
rations. All cities and incorporated villages shall have the general 
powers hereinafter mentioned, and may provide by ordinance for the 
exercise <rf the same. 

1. As to riots, etc. To prevent riots, gambling, noise and disturb¬ 
ance, indecent or disorderly conduct or assemblages, preserve peace 
and good order, and to protect the property of the municipal corpora¬ 
tion and its inhabitants. 2 


1 Act of 1852, §§ 20, 21, 22, 23, 34; § 25, as amended March 6,1857; § 26, 
as amended April 12, 1858; § 24, as amended April 28, 1854; § 62, as 
amended May 1,1854; § 63, as amended March 18,1859; §§ 64, 65; § 82, as 
amended April 28,1854; Act of April 6,1866 (63 O. L. 187); Act of May 1, 
1861 (58 O. L. 113); Act of May 13,1868 (65 O. L. 1S7); Act of February 19, 
1866 (63 O. L. 18); Act of March 28, 1864 (61 O. L. 71); Act of April 6,1866 
(63 O. L. 186); Act of April 11, 1867 (64 O. L. 124); Act of April 8 , 1856, 
§ 10; Act of April 12,1865 (62 O. L. 136); Act of April 5, 1866 (63 O. L. 
144); Act of January 26,1867 (64 O. L. 8 ); Act of April 12, I 860 (62 O. L. 
135); Act of May 8 , 1868 (65 O. L. 163); Act of March 29. 1867 (64 O. L. 
70); Act of April 5, 1867 (64 O. L. 110 ); Act of April 12, 1865 (62 O. L. 
136.) 

2 The act to incorporate the city of Cleveland, passed in 1836, provided, 
among other things, in reference to the city council : “ It shall be their 
duty to regulate the police of the city, preserve the peace, prevent dis¬ 
turbances and disorderly assemblages.” Held, that the duty intended was 
that properly appertaining to an administrative and legislative body, act¬ 
ing in the government of a city—the making regulations, by-laws and 
ordinances for the purposes specified, to be enforced by the appointment 




[55] 

2. As to nuisances. To prevent injury or annoyance from any¬ 
thing dangerous, offensive or unhealthy, and to cause any nuisance to 
be abated. 1 

3. As to billiard tables , etc. To suppress billiard tables, nine or 
ten pin alleys or tables, and ball alleys; and to authorize the destruc¬ 
tion of all instruments or devices used for the purpose of gaming. 2 

4. As to disorderly houses , etc. To suppress and restrain disor¬ 
derly bouses, and houses of ill-fame, and provide for the punishment 
of all lewd and lascivious behavior in the streets and other public 
places. 

5. As to sale of fermented liquors. To regulate, restrain and pro¬ 
hibit, ale, beer and porter houses or shops ; and houses and places of 
notorious or habitual resort for tippling or intemperance. 3 


of officers; and that neither on general principles, nor from the effect of 
that enactment, is the city of Cleveland responsible for the destruction of 
property by a riotous assemblage of persons, or for the neglect of the offi¬ 
cers in not preserving the peace, and preventing such destruction. West¬ 
ern Col.x. Cleveland , 1*2 O. S. 375. 

“ There is a distinction between those powers delegated to municipal 
corporations to preserve the peace and protect persons and property, 
whether to be exercised by legislation or the appointment of proper offi¬ 
cers, and those powers and privileges which are to be exercised for the 
improvement of the territory comprised within the limits of the corpora¬ 
tion, and its adaptation to the purposes of residence or business. As to 
the first, the municipal corporation represents the state—discharging du¬ 
ties incumbent on the state; as to the second, the municipal corporation 
represents the pecuniary and proprietary interests of individuals. As to 
the first, responsibility for acts done, or omitted, is governed by the same 
rule of responsibility which applies to like delegations of power; as to the 
second, the rules which govern the responsibility of individuals are prop¬ 
erly applicable.” Gholson, J. /&., 375-377. 

iThe city council has authority, under the law, to punish nuisances by 
a fine, and may, with that view, define, in an ordinance, what is to be 
deemed a nuisance as to the obstruction of a public street; but the city 
council can not, by any such ordinance, create a civil liability in a case 
where none exists at law. A liability in this respect must depend on the 
general legislation of the state. Chambers v. Ohio Life Ins. dt Trust Co r 
Disney’s R. 327; 2 Weekly Law Gaz. 37. 

2 Keeping nine-pin alleys in a town, by a keeper of a public house, being 
unlawful, the builder of such alley can not recover the value of labor and 
material furnished in its construction. Spurgeon v. McElwain , 6 O. 442. 

3 The liquor law of 1854 “is not prohibitory, nor does it interfere, in 
any degree, with any right of property. It belongs to that class of 
legislative acts commonly called “police laws,” and is framed with a 
view to regulate and not to destroy. It seeks to do by constitutional 
means what the assembly is expressly authorized to do—provide 
against the evils resulting from the traffic in intoxicating liquors. One 
of the greatest of these evils is the congregation of idle and dissolute 
persons at places where liquors are sold and drunk; hence the sale of 
liquor to be drunk at the place where sold is prohibited. Another evil 
is the sale to minors and persons intoxicated, or in the habit of getting 
intoxicated; hence the sale to the former is prohibited, except upon the 
order of their parents, guardians, or family physicians, and the sale to 
the latter is prohibited altogether. And insamuch as the habitual viola- 



[56] 

6. Taverns, etc. To regulate taverns and other houses for public 
entertainment. 

7. Theaters , etc. To regulate or prohibit all theatrical exhibitions 
and public shows, and all exhibitions of whatever name or nature for 
which money, or other reward, is in any manner demanded or received ; 
but lectures on historic, literary or scientific subjects shall not come 
within the provisions of this section. 1 

tion of these provisions does in fact create a nuisance, it is declared to be 
one in law, and authority is given not to abate any man’s house, but to 
abate the nuisance that exists thereat. ****** For the same 
reason it might be declared unlawful to sell poison to a child, or a dagger 
to a madman, it might be made an offense to sell intoxicating drink to a 
minor or a drunkard; and for the same reason that any other common 
nuisance might by law be abated, the business of a common tippling 
house might be subjected to that fate.” Thurman, C. Jin Miller v. State , 
3 O. S. 475-486. 

Where the charter gave to a town council the “power to grant or 
refuse license to all ale houses, confectioneries, or groceries, established 
within the limits of said town, and regulate the same as they shall think 
proper,” and made it the “special duty” of the mayor to see the ordi¬ 
nances of the town enforced, and an ordinance forbid the opening of a 
“ grocery-shop, or vending by retail within the limits of the town, bread, 
cakes, ale, wine, porter, mead, cider, metheglin, beer, confectionery, or 
spiritous liquors,” without license under penalty of not exceeding five 
dollars. Held —1. That the mayor, though a citizen, had jurisdiction to 
try a complaint for a breach of the ordinance. 2. That the ordinance 
was valid, though it enumerated articles licensed to be sold by the Court 
of Common Pleas, for state or county purposes; and that it was not in 
restraint of trade. Thomas v. Mount Vernon , 9 O. 290. 

The charter of a town granted power to license houses of public enter¬ 
tainment, and to impose a fine not exceeding ten dollars for retailing 
spiritous liquors without license; the general law of the state pro¬ 
vided, that if any person should retail spiritous liquors without being 
licensed, he should forfeit any sum not exceeding one hundred dollars, 
nor less than five dollars. Held: That the jurisdiction to punish under 
the ordinance and the general law was concurrent, but that a conviction 
under either jurisdiction would be a bar to a prosecution in the other. 
Wightman v. State , 10 O. 452. 

An ordinance of the town council of Akron, to prohibit, under a 
penalty, persons, not licensed tavern-keepers or physicians, from vending 
and retailing, within the corporate limits, ardent spirits or other intoxi¬ 
cating liquors, was consistent with the constitution of 1802 and the laws 
of Ohio, and, therefore, valid. 

Strong beer is intoxicating liquor within the letter and spirit of the 
ordinance. Retailing does not, necessarily, import a consideration for 
the thing retailed. Markle v. Akron, 14 O. 586. 

There are many offenses, made so by statute, which are but quasi 
criminal, and where the legislature may direct the mode of redress, un¬ 
trammeled by constitutional provision. In such cases the prosecution 
is not carried on in the name of the state, but of the corporation. IK 

The ordinance of a municipal corporation, prohibiting the sale of pure 
Ohio wine, ale, beer and cider, to be drank where sold, and prohibiting 
the sale of such liquors in less quantity than one gallon, is void, because 
inconsistent with and against the policy of the general statute of May 1, 
1854, “to provide against the evils resulting from the sale of intoxica¬ 
ting liquors in the State of Ohio.” Thompson v. Mount Vernon , 11 O. S. 
688. See cases collected in Ohio Digest, 265. 

l Infra , ch. 37. 




[57] 

8. Sale of animals. To regulate or prohibit the sale of live do¬ 
mestic animals at public auction, on the streets, alleys, highways, or 
any public ground within the corporation. 

9. Auctioneering. To regulate, license, or prohibit, the auction¬ 
eering of goods, wares and merchandise imported into the corporation 
for the purpose of being sold at auction. 1 

10. Use of carriages , drays , etc. To regulate the use of all carts, 
drays, wagons, hackney-coaches, omnibuses, and every description of 
carriages which may be kept for hire, and all livery stables. 

11. Running at large of cattle, etc. To regulate and restrain the 
running at large, within the limits of the corporation, of cattle, horses, 
swine, sheep, goats, geese and other animals, and to impound and hold 
the same, and, on notice to the owners, to authorize the sale of the 
same, or any portion thereof, for the penalty imposed by any ordi¬ 
nance and the costs and expenses of the proceeding. 2 

12. Dogs. To prevent the running at large of dogs, and injuries 
and annoyances therefrom, and to authorize the destruction of the 
same when running at large contrary to the provisions of any ordi¬ 
nance to that effect. 

13. Fast driving , etc. To prevent and punish fast driving or 
riding of animals, or fast driving or propelling of vehicles through or 
on the public highways. 

14. Gunpowder , etc. To regulate the transportation and keeping 
of gunpowder and other combustibles and explosives, and provide or 
license magazines for the same. 3 

15. Transportation through streets. To regulate the transporta¬ 
tion of articles through the streets, and prevent injuries to the streets, 
from over-loaded vehicles. 

16. Ilay, wood, coal , etc. To regulate the Weighing and measur¬ 
ing of hay, wood, coal, and all other articles exposed for sale. 4 

17. Fire. To guard against injuries by fire. 

18. Streets, alleys , etc. To provide for the laying down of gas- 
pipes, to lay off, establish, open, widen, straighten, extend, improve, 
keep in order and repair, and to light streets * alleys, public grounds 
and buildings, wharves, landing places, bridges and market spaces, 
within the corporation, including any portion of any turnpike or plank 
road therein, surrendered to, or condemned by, the corporation. 

19. Canals , etc. To construct, open, enlarge, excavate, improve, 
deepen, straighten or extend, any canal, ship channel, or water course, 
located in whole or in part within the corporation. 

20. Cleaning streets, etc. To regulate the cleaning and sprinkling 
of streets, alleys and public grounds. 

21. Sewers, etc. To open, construct, keep in order and repair, sew¬ 
ers, drains and ditches. 5 


1 Infra , ch 34. 

2 Supra , § 53; Marietta v. Fearing (4 O. 427-432); Dodge v. Oridley (10 O. 
159.) 

3 Supra , § 53. 


4 Infra, ch. 41. 


5 Infra, ch. 50. 



[58] 

22. Water closets. To establish, repair and regulate public water 
closets and privies. 

23. Hospitals, etc. To erect, establish, regulate and repair, pest 
houses and hospitals. 

24. Board of health. To establish a board of health, and to in¬ 
vest it with such powers, and impose upon it such duties, as may be 
necessary to secure the inhabitants from the evils of contagious, ma¬ 
lignant and infectious diseases. 1 

25. Jails, etc. To build jails, or other places of confinement, and 
to regulate the same. 

26. Markets. To erect market houses, and establish and regulate 
markets. 

27. Buildings. To regulate the erection of buildings and other 
structures, within the corporate limits. 

28. Cemeteries. To provide public cemeteries, and. for the improve¬ 
ment and protection thereof, and to regulate the burial of the dead. 

29. Police. To organize and maintain a police department. 

30. Fire department. To organize and maintain a fire department, 
erect necessary buildings therefor, and to purchase and hold all neces¬ 
sary hose, engines, carts, ladders, carriages, tools and implements 
therefor. 

31. Water works. To provide for a supply of water, by the con¬ 
struction of wells, pumps, cisterns, aqueducts, water pipes, reservoirs 
and water works, and for the protection thereof; to prevent unneces¬ 
sary waste of water, and the pollution thereof. 

32. Parks, etc. To hold and improve public grounds and parks, 
and to provide for the protection and preservation of the same. 

33. Appropriation of private property. To appropriate private 
property for the uses of the corporation. 

34. Beal estate. To acquire, by purchase or otherwise, and hold, 
real estate, Or any interest therein, and other property, for the uses of 
the corporation, and to sell or lease the same. 

35. School houses. To erect and maintain buildings for public 
schools. 

36. Halls. To erect and maintain public halls. 

37. Libraries , etc. To establish and maintain free public libraries 
and reading rooms; to purchase books, papers, maps and manuscripts 
therefor ; and to receive donations and bequests of money or property 
for the same in £rust, or otherwise. The council may appoint such 
trustees or officers, and confer upon them such authority as may be 
necessary to render any library or reading room so established of pub¬ 
lic utility. They may also pass necessary by-laws and regulations 
for the protection and government of the same. 

38. Ferries. To license and regulate ferries within the corporate 
limits. 


1 Infra , cli. 23. 



[59] 

CHAPTER XVI. 

VAGRANTS, CRIMINALS, AND SUSPICIOUS CHARACTERS. 1 

Section. Section. 

200, Public peace and morals. 202. Imprisonment therefor. 

201. Punishment for breaches of the peace, 203. Regulation of labor. 

etc. 204. Hospitals, etc. 

Sec. 200. Public peace and morals. The council of any city or in¬ 
corporated village shall have power to provide for the punishment of 
persons disturbing the good order and quiet of the village, by clamor 
and noise in the night season, by intoxication, drunkenness, fighting, 
using obscene or profane language in the streets and other public 
places, to the annoyance of its citizens, or otherwise violating the pub¬ 
lic peace by indecent and disorderly conduct or by lewd and lascivious 
behavior; and they shall have power, in like manner, to provide for 
the punishment of vagrants, common street beggers, common prosti¬ 
tutes, habitual disturbers of the peace, known pickpockets, gamblers, 
burglars and thieves, watch stuffers, ball-game players, persons who 
practice any trick, game or device with intent to swindle, persons who 
abuse their families, and suspicious persons who can not give reason¬ 
able account of themselves. 

Sec. 201. Punishment for breaches of the peace , etc. Such pun¬ 
ishment may be either by imposing and collecting fines, or by im¬ 
prisonment in the proper jail at hard labor, or both, at the discretion 
of the court; but no such person shall be fined for a single offense to 
exceed fifty dollars, and such imprisonment and hard labor shall, for 
the first offense, not exceed thirty days, for the second offense, ninety 
days, for the third offense, six months, and for the fourth or any further 
repetition of the offense, one year. 

Sec. 202. Imprisonment therefor. The council shall have power 
to provide that all such persons who shall refuse or neglect to pay the 
fine imposed on conviction of any such offense, and the costs of pros¬ 
ecution, shall be imprisoned and kept at hard labor, until, at the rate 
of seventy-five cents for each day’s labor, exclusive of Sundays, they 
shall have earned an amount equal to such fine and costs. 

Sec. 203. Begulation of labor. The council shall have power to 
make suitable regulations to conduct such labor to the best advantage, 
and in a manner consistent with the age, sex, and health of the pris¬ 
oners, and such labor may be done at the corporation prison, work- 
house or elsewhere, if within a suitable enclosure, and under the charge 
of such officers or other persons as the council may select. 

Sec. 204. Hospitals , etc. The council may provide suitable hos¬ 
pitals for the reception and care of such prisoners as may be diseased 
or disabled, the same to be under such regulations and under the 
charge of such person as the council may direct. 


i Act of March 29,1859 (4 Curwen, ch. 1984); Act'of March 23,1866 (63 
O. L. 49); Act of April 10,1861 (58 O. L. 77); Act of March 31, 1864 (61 
O. L. 130.) 




[ 60 ] 


CHAPTER XVII. 

POLICE. 

Section. 

205. Appointment of police, etc. 

206. Equal number in the several wards 

207. Policemen’s bonds. 

208. Officers of police. 

209. Organization of police. 

210. Duties and powers of policemen. 

Sec. 205. Appointment of police , etc . The council of cities and 
incorporated villages shall have power to provide by ordinance for the 
appointment by the mayor, by and with the consent of the council, of 
such number of police and night watchmen as they may think neces¬ 
sary for the good government of the corporation, who shall hold their 
office for one year unless sooner removed. 1 

Sec. 206. Equal number in the several wards. In corporations 
divided into wards, an equal number of police and night watchmen 
shall be provided for the several wards. 1 

Sec. 207. Policemen's bonds. The night watchmen and police shall, 
before entering upon their duties, give bond with good and sufficient 
surety to the satisfaction of the mayor, for the faithful performance of 
their duties. 1 

Sec. 208. Officers of police, etc. The council shall also have power 
to provide by ordinance for the appointment of subordinate officers of 
the police and night watchmen, and to prescribe the number of such 
officers. They may also provide, in addition to the regular watch, for 
the appointment of a reserved watch, to consist of a suitable number 
of persons in each ward, when the corporation is divided into wards, 
to be called into duty in whole or in part, in such manner and on such 
occasions as the council may prescribe, and by the mayor, or the offi¬ 
cers of the police under his direction, and in special cases, or in cases 
of emergency. 2 

Sec. 209. Organization of police. The police and night watchmen 
shall be organized by the council under the general superintendence of 
the mayor, marshal, chief of police, or other officers of the police, and 
the council shall prescribe their duties, and define their powers, in such 
manner as will most effectually preserve the peace of the corporation, 
secure the inhabitants thereof from personal violence, and their prop¬ 
erty from fire and unlawful depredations. 3 

Sec. 210. Duties and powers of policemen. It shall be the duty of 
the police and night watchmen and the officers thereof, under the di¬ 
rection of the mayor, and in conformity with the ordinances of the 
corporation, to suppress all riots, disturbances and breaches of the 
peace; to pursue and arrest any person fleeing from justice, in any 
part of the state; to apprehend any and all persons in the act of com¬ 
mitting any offense against the laws of the state, or the ordinances of 


Section. 

211. Suspension of policemen for cause. 

212. Special policemen. 

213. Compensation of policemen. 

214. Exemption of certain cities from pro¬ 

visions of tbis act concerning police. 


1 Act of 1852, $ 71, February 21, 1867; 64 O. L. 21. 

2 Act of 1852, $ 74. 3 Act of 1852, § 62. 



[ 61 ] 

the corporation, and forthwith bring such person or persons before the 
police court, or other competent authority, for examination; and at all 
times diligently and faithfully to enforce all such laws, ordinances and 
regulations, for the preservation of good order and the public welfare, 
as the council may ordain, and for such purpose they shall have all 
the power of constables; they may, upon view, arrest any person or 
persons who may be guilty of a breach of the ordinances of the cor¬ 
poration, or of any crime against the laws of the state; and may, 
upon reasonable information, supported by affidavit, procure process 
for the arrest of any person or persons who may be charged with a 
breach of any of the ordinances of the corporation. 1 

Sec. 211. Suspension of policemen for cause. The mayor shall 
have power to suspend any policeman or night watchman for neglect 
of duty, misconduct, or other sufficient cause, and may appoint other 
persons to fill the temporary vacancy caused thereby ; and such action 
shall thereafter be taken as is provided in section one hundred and 
twenty-one. 2 

Sec. 212. Special policemen. The mayor, in cities of the first 
class, may appoint such persons, not exceeding eight in number, with 
the pay and powers of police in such city, as may be necessary to at¬ 
tend the sittings and execute the orders of the police court, and per¬ 
form duty at the city prison. 3 

Sec. 213. Compensation of policemen. The council shall fix the 
compensation or fees the policemen and night watchmen, and the offi¬ 
cers thereof shall receive for their services, and they shall not de¬ 
mand or receive any other fee, perquisite or reward. 4 

Sec. 214. Exemption of certain cities from provisions of this act 
concerning police. The provisions of this act, in respect to police and 
night watchmen, shall not apply to cities governed by the following 
acts : 

An act entitled “ an act authorizing the appointment of metropoli¬ 
tan police commissioners in cities of the first class, with a population 
of less than one hundred thousand inhabitants at the last federal cen¬ 
sus,’ ’ passed April 5, 1866. 5 

Also, an act entitled “ an act to amend ‘ an act authorizing the ap¬ 
pointment of metropolitan police commissioners in cities of the first 


1 Act of 1852, § 74. 

Under the provisions of the act of May 3, 1852, the City Council may 
lawfully authorize police officers of the city, to arrest, upon view, and 
without warrant, any person in the act of violating the ordinances of 
the city, made for the preservation of good order and public convenience. 
White v. Kent, 11 O. S. 550. 

2 Act of 1852, $ 71, as amended April 18,1854 (4 Curwen, ch. 1451); § 50, 
as amended February 21, 1867 (64 O. L. 21.) 

s Act of March 14, 1859, § 6, as amended March 9,1866; 63 O. L. 33. 

4 Act of 1852, § 50, as amended February 21,1867 (64 O. L. 21); Act of 
March 14,1859, § 5, as amended March 8,1860 (4 Curwen, ch. 2070.) 

5 63 O. L. 104. 



[ 62 ] 

class, with a population less than one hundred thousand inhabitants 
at the last federal census,’ passed April 5,1866,” passed April 2,1868, 
(65 0. L. 45.) 

Also, an act entitled “ an act to provide for the organization, regu¬ 
lation and more efficient government of the police in cities of the first 
class, which have been advanced to that grade between decennial pe¬ 
riods,” passed May 6, 1868 (65 0. L. 151.) 


CHAPTER XVIH. 

CORPORATION PRISON. 

Section. Section. 

215. Prisons, station houses, etc. 218. Custody of prisoners Vthere there is no 

216. Sustenance, etc., for prisoners. workhouse. 

217. Provision therefor by council. 

Sec. 215. Prisons , station-houses , etc . The council of any city 
or incorporated village shall have power to erect, establish and main¬ 
tain a prison and one or more watch or station houses, as shall be 
necessary; and such prison, watch or station houses shall be under 
the control of the marshal, or chief of police, under such rules and 
regulations as the council may prescribe. 1 

Sec. 216. Sustenance , etc., for prisoners. It shall be the duty of 
the marshal or chief of police to provide all persons confined in such 
prison, watch or station houses, with necessary food during such con¬ 
finement, and to see that such places of confinement are kept clean 
and made comfortable for the inmates thereof. 1 

Sec. 217. Provision therefor by council. The council shall pro¬ 
vide, by ordinance, for sustaining all persons sentenced to or confined 
in such prison at the expense of the corporation; and on the presenta¬ 
tion of bills for food, sustenance and necessary supplies to the proper 
officer, certified to by such person or persons as the council may desig¬ 
nate, not exceeding forty cents a day, such officer shall audit the same 
under such rules and regulations as the council may prescribe, and 
draw his order on the treasurer of the corporation in favor of the 
officer presenting such bill. 1 

Sec. 218. Custody of prisoners where there is no work house. In 
corporations in which there is no work house, the council may, by or¬ 
dinance, provide for the keeping of persons convicted and sentenced to 
hard labor, during the term of their imprisonment, at such place or 
places within the corporation as the council may determine. 1 


i Act of 1852, § 82, as amended April 28,1854 (4 Curwen, ch. 1400); Act 
of March 14,1859, § 6, as amended March 8, 1860 (4 Curwen, ch. 2070): 
Act of April 10,1861 (58 O. L. 77); Act of March 30, 1864 (61 O. L. 88); 
Act of April 12, 1865 (62 O. L. 136.) 




[ 63 ] 


CHAPTER XIX. 


HOUSES OF REFUGE AND CORRECTION. 1 


Section. 

219. Houses of refuge and correction. 

220. Directors of houses of refuge and cor¬ 

rection. * 

221. Their appointment, terms of office, etc. 

222. Election of president, cleik, etc. 

223. Recoi'd of proceedings, etc. 

224. Powers in erection of buildings, etc. 

225. Male and female apartments to be sepa¬ 

rate. 

226. Separate buildings for males and 

females. 

227. Appointment of superintendent and 

subordinate officers. 

228. Rules and regulations. 

229. Rules, etc., to be approved by council. 

230. How books 6hall be kept. 

231. Quarterly statement to be made to 

council. 

232. Accounts to be balanced and reported 

annually. 

233. Superintendent to have control, etc. 

234. His responsibility. 

235. Deputy superintendent. 

236. Notice of completion of building to be 

published. 

237. Removal of officers for cause. 

238. When infants may be received, etc. 

239. Custody and confinement of infants. 

240. When they may be put to labor. 

241. Disposition of infants until of age. 

242. Commitment to refuge on recommenda¬ 

tion of grand jury. 

243. Commitment to refuge by court in cer¬ 

tain cases. 

244. Infants entitled to private examination 

and trial. 

245. Infants to be placed in refuge instead of 

jail. 


Section. 

246. Disposition of infants when refuge ie 

full. 

247. Statement of age, residence, cause, etc., 

must bo furnished. 

248. What record of commitment shall con¬ 

tain. 

249. Term of commitment, etc. 

250. Employment of infants in refuge. 

251. Board may bind them as apprentices. 

252. Committee of indentures, etc. 

253. When indenture to be cancelled. 

254. When indentured infant may be re¬ 

claimed. 

255. Arrest, etc., of fugitives from refuge or 

apprenticeship. 

256. Disposition of stubborn and irreclaima¬ 

ble infants. 

257. Duty of sheriff to notify prosecuting 

attorney, etc. 

258. Final disposition of such stubborn in¬ 

fant. 

259. How expenses shall be paid. 

260. How excess of expenses shall be raised. 

261. What return to writ of habeas corpus 

shall Contain. 

262. Circumstances of commitment, how fkr 

examinable. 

263. Application of aggrieved party for re¬ 

view of commitment. 

264. When infant shall be delivered to appli¬ 

cant. 

265. Applicant may bring action in court. 

266. Costs of such action. 

267. When real estate may be sold. 

268. Deed, and proceeds of sale. 

269. Action against directors, how brought. 

270. This act not to affect refuges heretofore 

established. 


Sec. 219. Houses of refuge and correction. The council of any 
city or incorporated village shall have power to establish, erect and 
maintain houses of refuge and correction. 

Sec. 220. Directors of houses of refuge and correction. The 
management of houses of refuge and correction, established or which 
may hereafter be established, and the management and care of the in¬ 
mates thereof, the erection and enlargement of any building as a house 
of refuge and correction, or any addition or additions thereto, repairs 
and furnishing thereof, erection of any work shops and furnishing the 
same with the necessary machinery and tools, and the cultivation and 
improvement of any grounds therewith connected, shall be vested in 
a board of five directors, to be called the “ Board of Directors of the 
House of Refuge and Correction.” 

Sec. 221. Their appointment, terms of office, etc. The said di¬ 
rectors shall be freehold electors of the corporation; they shall be 
appointed by the mayor, with the consent of the council; and shall 


i Act of April 16,1857 (4 Curwen, cli. 1760); Act of April 13, 1867 (64 
O. L. 130); Act of 1852, §§ 79, 80, 81; § 78, as amended April 8, 1856 (4 
Curwen, cli. 1632); Act of March 9, 1866 (63 O. L. 30.) 



[64] 

hold their office for the term of five years, except that at the first ap¬ 
pointment one of the said directors shall be chosen to serve for one 
year, one for two years, one for three years, one for four years, and one 
for five years ; and annually thereafter one director shall be appointed ; 
and a majority of the directors shall constitute a quorum. They shall 
not receive any compensation for their services. 

Sec. 222. Election of 'president, clerk, etc. Said board shall elect, 
annually, at the first regular meeting in May, one of their number as 
president; and, at the same meeting, it shall appoint a secretary and 
clerk, and such other officers as may be necessary, and fix the compen¬ 
sation for their services, subject to the approval of the council. 

Sec. 223. Record of proceedings, etc. The said board shall keep 
a complete record of all its proceedings; and it shall be necessary to 
• the validity of every contract it may authorize to be made, that the 
same has been assented to at a regular meeting, by a majority of all 
the members, and a minute thereof entered on the journal of its pro¬ 
ceedings. 

Sec. 224. Powers in erection of buildings , etc. In the erection of 
any building as a house of refuge and correction, or of any addition 
or additions thereto, or any enlargement thereof, and in the repair and 
furnishing the same, and in the erection of any shops and providing 
the same with machinery and tools, the said board shall have the same 
powers, be governed by the same regulations and perform the same 
duties, so far as applicable, as are prescribed for the government of 
trustees of hospitals in chapter twenty-one; and the power of the 
council in relation to the erection and repair of said buildings, and the 
conduct of the board, shall be the same, so far as applicable, as pre¬ 
scribed in said chapter, in relation to the erection and repair of build¬ 
ings for hospital purposes. 

Sec. 225. Male and female apartments to be separate. In the 
erection of any such buildings, and in any addition or additions thereto, 
or any enlargement thereof, the said board shall have power to so con¬ 
struct the same that the male and female inmates shall be provided 
with separate departments and accommodations; and that the grounds 
therewith connected shall be so separated, by partition walls or fences, 
that the males and females may be enabled to occupy separate portions 
thereof. 

Sec. 226. Separate buildings for males and females. When¬ 
ever, in the opinion of the board, it shall be deemed advisable to pro¬ 
vide separate buildings for the accommodation of males and females, 
such buildings shall be erected at least one-fourth of a mile apart, and 
the grounds around each shall be inclosed by suitable walls or fences. 

Sec. 227. Appointment of superintendent and subordinate of¬ 
ficers. The said board shall have power to appoint a superintendent, 
deputy superintendent, and such other subordinate officers, guards and 
employes as may be necessary, and fix their compensation and prescribe 
their duties, and to make all such regulations for their management 
and government as they shall deem expedient. 

Sec. 228. Rules and regulations. The said board shall have 


[65] 

power to make, establish and enforce rules and regulations for its own 
government, and the government and control of such institution, its 
officers and inmates, and make contracts for supplies and the labor of 
its inmate#. 

Sec. 229. Buies, etc., to be approved by council. No resolution 
or act of said board making any appointment or fixing the compensa¬ 
tion of any appointee, and no appropriation of money for any purpose, 
other than the ordinary and necessary expenses and repairs of the in¬ 
stitution, and no by-law, rule or regulation it may establish, shall be 
of any validity until approved by the council. 

Sec. 230. IIow books shall be kept. The books of said institution 
shall be so kept as to clearly exhibit the true state and condition of 
the inmates, the number received and discharged, and for what cause 
committed, the number employed as servants or in cultivating the 
premises, the number employed in each branch of industry carried on, 
and the receipts from, and expenditures for and on account of each de¬ 
partment of business, or for the improvement of the premises. 

Sec. 231. Quarterly statement to be made to council. Said board 
shall cause a quarterly statement to be made out, specifying minutely 
all receipts and expenditures, from whom and for what purpose re¬ 
ceived, and to whom and for what purpose paid, with proper vouchers 
for each item, and shall submit such statement, properly certified, to 
the council for examination and approval. 

Sec. 232. Accounts o be balanced and reported annually. The 
accounts of said institution shall be annually closed and balanced on 
the first Monday of January in each year, and full reports of the pre^ 
ceding year shall then be made and submitted to the council, and shall 
be published in the official paper of the corporation, or in such other 
form as said council may direct; and the council may require such 
other and further reports and exhibits of the condition and manage¬ 
ment of such institution as to them shall seem necessary and proper. 

Sec. 233. Superintendent to have control, etc. The superintend¬ 
ent of said institution shall have the entire control and management of 
its affairs, subject to the laws and the ordinances of the corporation, and 
the rules and regulations adopted by the board for its government; 
and it shall be his duty to obey and carry out all written orders and 
instructions of the board not inconsistent with the laws, rules and 
regulations relating to the government of said institution. 

Sec. 234. His responsibility. He shall be responsible for the man¬ 
ner in which said institution,^ managed and conducted, shall reside 
at the same, devote his time and attention to the proper business 
thereof, and shall visit and examine into the condition of every depart¬ 
ment thereof, and of each person confined therein, daily, or as often 
as good order or necessity may require, and he shall exercise a gen¬ 
eral supervision and direction in regard to all matters of discipline, 
police regulation and business of said institution. 

Sec. 235. Deputy superintendent. In the absence or inability of 
the superintendent, the deputy superintendent of said institution shall, 


[ 66 ] 

so far as relates to the discipline thereof, perform the duties of the su¬ 
perintendent. 

Sec. 236. Notice of completion of building to be .published. 
When any house of refuge and correction has been erecteo, as is pro¬ 
vided herein, and is so far complete as to insure the safe confinement 
and employment of the persons intended to he confined therein, the 
said board shall cause notice of that fact to be published in some news¬ 
paper of general circulation in the corporation and county. 

Sec. 237. Removal of officers for cause. The board may, for 
misconduct or willful neglect of duty, and upon sufficient proof thereof, 
remove any officer or employe of said institution, except the super¬ 
intendent thereof, who shall be removable for the causes and in the 
manner provided for the removal of city officers, and any employe of 
the superintendent may be discharged at his discretion. 

Sec. 238. When infants may be received , etc. The board may, at 
their discretion, receive into such institution infants under the age of six¬ 
teen years, committed to their custody in either of the following modes, 
to wit : 

1. Infants committed by any justice of the peace within the county, 
by the mayor of the corporation, the judge of the police or other mu¬ 
nicipal court, any judge of the court of common pleas of the county, 
the probate judge of the county, and in those counties in which there 
may be a superior court, by any judge of such superior court, on the 
complaint and due proof thereof by the parent, guardian, or next friend 
of such infant, that, by reason of incorrigible or vicious conduct, 
such infant has rendered his or her control beyond the power of such 
parent, guardian or next friend, and made it manifestly requisite that, 
from regard to the future welfare of such infant, and for the protection 
of society, he or she should be placed under the guardianship of the 
board of directors of such house of refuge and correction. 

2. Infants committed by the authorities aforesaid, where complaint 
and due proof have been made that such infant is a proper subject for 
the guardianship of the directors of such institution, in consequence 
of vagrancy, or of incorrigible or vicious conduct, and that from the 
moral depravity, or otherwise, of the parent or guardian, or next friend, 
in whose custody such infant ; may be, such parent, guardian, or next 
friend, is incapable or unwilling to exercise the proper care and dis¬ 
cipline over such incorrigible or vicious infant. 

3. Infants who are destitute of a suitable home and of adequate 
means of obtaining an honest living, or who are in danger of being 
brought up to lead an idle and immoral life, may be committed to the 
guardianship of the directors of such institution, by the trustees of any 
township within the county in which such institution may be situated, 
or by the mother, when the father is dead, or has abandoned his fam¬ 
ily, or does not provide for their support, or who is an habitual drunkard. 

Sec. 239. Custody and confinement of infants. Any infant under 
the age of sixteen years who shall be convicted of any offense made 
punishable by imprisonment under any ordinance of the city, or who 
shall be liable to be committed to prison under any such ordinance. 


may be confined in such bouse of refuge and correction under sucb 
rules and regulations as the directors may prescribe; and it shall be 
lawful for the directors of such institution to receive and take charge 
of any children who may be committed to their custody by the court 
of common pleas, or any judge, justice of the peace, or other officer, 
under any law of the state. 

Sec. 240. When they may be put to labor. Any infant over the 
age of sixteen years, convicted of a violation of any ordinance, and lia¬ 
ble to be punished therefor by imprisonment, or who may be liable to 
imprisonment for neglect or refusal to pay a fine imposed for the vio¬ 
lation of any ordinance, may, in lieu thereof, be committed to the 
house of refuge and correction, and put to hard labor, in such manner 
as may be prescribed by ordinance of the council. 

Sec. 241. Disposition of infants until of aye. Any infant under 
the age of sixteen years who shall be liable to' confinement in the jail 
in any county in which a house of refuge and correction may be sit¬ 
uated, or in the penitentiary of the state from any such county, may, 
at the discretion of the court, or magistrate giving sentence, be placed 
in such institution until of legal age, under the exclusive control and 
guardianship of the directors of such institution. 

Sec. 242. Commitment to refuge on recommendation of grand 
jury. If any accusation of the commission of any crime shall be made 
against any infant under the age of sixteen years, before the grand 
jury of the county in which such house of refuge and correction may 
be situated, and the charge appears to be supported by evidence suffi¬ 
cient to put the accused upon a trial, the grand jurors may, in their 
discretion, instead of finding an indictment against the accused, re¬ 
turn to the court that it appears to them that the accused is a suitable 
person to be committed to the guardianship of the directors of the 
house of refuge and correction, and the court shall thereupon order 
such commitment. 1 

Sec. 243. Commitment to refuge by court in certain cases. If 
any infant under the age of sixteen years shall be arraigned for trial 
in any court having criminal jurisdiction in any county in which a 
house of refuge and correction may be situated, on a charge of any vio¬ 
lation of any criminal law in this state, or ordinance of the corpora¬ 
tion, the judge may, with the consent of the accused, arrest, at any 
stage of the cause, any further proceedings upon the part of the pros¬ 
ecution, and commit the accused to the guardianship of the directors 
of such institution. 

Sec. 244. Infants entitled to private examiuation and trial. 
All infants under the age of sixteen years who may be accused of any 


i In any trial, in any court, the party accused shall be allowed to appear 
and defend in person and with counsel; to demand the nature and cause 
of the accusation against him, and have a copy thereof; to meet the wit¬ 
nesses face to face, and to have compulsory process to procure the attend¬ 
ance of witnesses in his behalf, and a speedy public trial by an impartial 
jury of the county or district in which the offense is alleged to have been 
committed. Const, of Ohio, Art. 1, § 10. 



[ 68 ] 

offense punishable by imprisonment, in any county in which a house 
of refuge and correction may be situated, shall he entitled to a private 
examination and trial, to which only the parties shall he admitted, 
unless one of the parents, the guardian or other legal representative, 
demand a public trial, in which case all proceedings shall he in the 
usual form. 

Sec. 245. Infants to be placed in refuge instead of jail. Any 
infant under the age of sixteen years who may he committed, in any 
county in which a house of refuge and correction may he situated, for 
trial, or as a witness, shall he placed in such institution, subject to the 
order of the court making such commitment, and in no case in the 
county jail. 

Sec. 246. Disposition of inf ants when refuge is full. If, at any 
time, any house of refuge and correction shall have as many infants 
under its charge as can be conveniently accommodated therein, or as 
many as the funds of such institution are adequate to maintain, the 
board shall not he required to receive other infants, hut shall order 
their chief officer to return that fact to any magistrate, court or person 
authorized to commit, who shall have sent an infant to such institu¬ 
tion ; and thereupon the case of such infant shall be disposed of as if 
this chapter had not been enacted, and as if no proceedings had taken 
place under it. 

Sec. 247. Statement of age , residence, cause , etcmust be fur¬ 
nished. In all cases where an infant is committed to the instruction 
and discipline of a house of refuge and correction under the guardian¬ 
ship of the directors thereof, the person ordering such commitment 
shall, at the same time, furnish to the directors or officers of such in¬ 
stitution a true statement, in writing, of the age of such infant, and 
the reason for such commitment; and until such statement is fur¬ 
nished, the directors or officers aforesaid may decline receiving such 
infant. 

Sec. 248. What record of commitment shall contain. In all 
cases where the commitment is ordered by any official person whose 
proceedings are usually evidenced by a record, or where the occasion 
of the commitment is a criminal charge against the infant, no other 
record shall be made, unless demanded by the infant, or his parents, 
or guardian, than that, in substance, such infant (naming him), who, 
on a day therein named, was of the age of — years, having been 
brought before such court or officer, and the court or officer having as¬ 
certained by the testimony of the witnesses therein named that such 
infant was a suitable person to be committed to the discipline and in¬ 
struction of the h'ouse of refuge and correction under the guardianship 
of the directors thereof, such infant was so committed, and delivered 
to the charge of such directors. 

Sec. 249. Term of commitment , etc. No commitment of an in¬ 
fant to a house of refuge and correction shall be for a shorter period 
than till such infant shall be reformed or attain the age of majority, 
except in case of infants committed to await their trial, or as wit¬ 
nesses, and except in such case as the board may, by their general 


[ 69 ] 

rules, provide ; but any infant, by whomsoever committed, or for what¬ 
ever cause committed, may at any time be discharged upon the order 
of the board, duly entered upon their minutes. 

Sec. 250. Employment of infants in refuge . The board shall 
have power to place infants committed to their care, during their mi¬ 
nority, at such employment, for account of the institution or other¬ 
wise, and cause them to be instructed in such branches of useful 
knowledge, as may be suited to their years and capacities. 

Sec. 251. Board may bind them as apprentices. Said board shall 
have power, at discretion, to bind out the said infants committed to 
their care, with their consent, as apprentices during their minority, 
to such persons and at such places, to learn such proper trades and 
employments, as in their judgment will be most conducive to their 
reformation and amendment, and as will tend to the future benefit and 
advantage of such infants. 

Sec. 252. Committee of indentures , etc. The said board shall, 
for such purpose, have power to appoint a committee of one or more, 
of their number, with power to execute and deliver, on behalf of the 
board, indentures of apprenticeship for any infant in such institution 
whom they may deem a proper person for an apprenticeship ; and such 
indentures shall have the like force and effect as other indentures of 
apprenticeship under the laws of Ohio, and the indentures shall be 
filed and kept in the office of such institution, and it shall not be nec¬ 
essary to file or record them in any other place or office. 

Sec. 253. When indenture to be cancelled. In case any infant so 
apprenticed shall prove untrustworthy and unreformed, the board may, 
at their discretion, permit such infant to be returned to such house of 
refuge and correction, to be held in the same manner as before said 
apprenticeship, and may, thereupon, order the indentures for such 
infant to be cancelled. 

Sec. 254. When indentured infant may be reclaimed. If, in the 
opinion of the board, any infant apprenticed out by them shall have 
an unsuitable home, or if the person to whom said infant is inden¬ 
tured shall become unfit or incapable to properly raise or take care of 
such infant, the directors may, at their discretion, return such infant 
to the institution from which it was indentured. 

Sec. 255. Arrest , etc., of fugitives from refuge or apprentice¬ 
ship. Any fugitive from a house of refuge and correction, or a fugitive 
from apprenticeship under indentures executed as above provided, may 
be arrested and returned to such institution by a sheriff or constable 
of any county in this state, or police officer of the corporation, or officer 
of such institution, on the written order of any two directors of such in¬ 
stitution, directed to such officer or officers ; and may be delivered to 
the custody of such officer of a house of refuge and correction, as the 
directors may name. 

Sec. 256. Disposition of stubborn and irreclaimable infants. 
When any infant shall be convicted of any offense against the laws 
of this state, punishable with imprisonment in the penitentiary, or in 
the jail of the county where such house of refuge and correction may 


[ 70 ] 

be situate, and shall, under existing laws, be sent to the house of 
refuge and correction, instead of the penitentiary or jail, and shall re¬ 
fuse to submit to the rules of said institution, and prove to be stubborn 
and irreclaimable, in the opinion of a majority of said board, such in¬ 
fant may, by their order, be delivered into the custody of the sheriff 
of said county, with a written statement of the cause of commitment, 
and of the conduct and character of such infant, as exhibited in said 
institution, which statement shall be prepared and signed by the su¬ 
perintendent of the institution. 

Sec. 257. Duty of sheriff to notify prosecuting attorney , etc . 
It shall be the duty of the sheriff to receive such infant into his cus¬ 
tody, and file said statement in the office of the clerk of the court of 
common pleas, or in the office of the clerk of the court in which such 
infant shall have been tried, and to notify the prosecuting attorney 
of the county thereof. 

Sec. 258. Final disposition of such stubborn infant. There¬ 
upon, the prosecuting attorney shall cause such infant to be brought 
before the court of common pleas, or before the court in which such 
infant may have been tried, to receive the sentence which the court 
shall deem just, according to the law, for the offense of which such 
infant shall have been convicted, as aforesaid. 

Sec. 259. How expenses shall be paid. The expenses of main¬ 
taining infants committed to any house of refuge and correction, by a 
court or magistrate of the county in which such institution may be 
situated, or by the police or other court of the corporation, for offenses 
against any law of the state, or for trial, or as a witness, shall be paid 
by the county; the expenses of infants committed by township trus¬ 
tees shall, be paid by the township, and of those committed by parents 
and guardians, shall be paid by them, unless in cases where the board 
shall otherwise determine, all which expenses shall be ascertained and 
fixed by the board. 

Sec. 260. How excess of expenses shall be raised. The expense 
of maintaining and administering the affairs of houses of refuge and 
correction, over and above the receipts thereof, shall be audited and 
paid, from time to time, by the council of the corporation, and a tax 
for said expenses shall be levied and collected as a part of the ordin¬ 
ary expenses of the corporation. 

Sec. 261. What return to writ of habeas corpus shall contain . 
It shall be a sufficient return to any writ of habeas corpus, directed to 
any person or officer inquiring into the cause of the detention of any 
infant committed to a house of refuge and correction, that the infant 
named in ihe writ was, on a day therein named, committed to the 
guardianship of the directors of the house of refuge and correction in 

the city or incorporated village of —-, (as the case may be,) by 

the person or officer who executed the commitment, naming him, until 
such infant should arrive at legal age, and that that period has not 
arrived. 

Sec. 262. Circumstances of commitment , how far examinable * 
Where a commitment has, in fact, been executed by a person authorised 



[ 71 ] 

by this chapter to execute it, the existence of the circumstances justi¬ 
fying its execution, shall not be otherwise examinable than in an action 
against the directors of such institution, as provided in this chapter. 

Sec. 263. Application of aggrieved party for review of com¬ 
mitment. If any parent, guardian, master to whom an infant has 
been apprenticed, any person occupying the position of parent, pro¬ 
tector or guardian in fact, or any relative by blood or marriage, not 
further remote than first cousin to such infant, shall feel aggrieved by 
the commitment of any infant to the directors of a house of refuge 
and correction, by any person authorized by this act to commit such 
infant, he shall make a written application to the board at such time 
as the directors may, by rule or resolution, provide for hearing appli¬ 
cations, not later than the next regular meeting of the board, to have 
the infant delivered to him, which application shall state the ground 
of the applicant’s claim to the custody of such infant, and the reasons 
for claiming such custody. 

Sec. 264. When infant shall be delivered to applicant. Within 
ten days after hearing such application, the directors shall decide ; and 
if they shall be of opinion that the welfare of such infant will be 
promoted by granting the application, they shall make an order to 
that effect, otherwise they shall decline the application. 

Sec. 265. Applicant may bring action in court. The applicant 
may, if the application be declined, upon first giving security for the 
payment of all costs, commence an action in the court of common 
pleas of the county, or, in counties in which there may be a superior 
court, in the superior court, for the recovery of the infant, against the 
directors of the house of refuge and correction; which action shall be 
conducted in all respects as actions under the code of civil procedure. 

Sec. 266. Costs of such action. The costs of such action shall be 
paid by the applicant, unless the court shall certify, in the journal 
entry of the judgment, that the refusal of the directors to grant the 
application of the plaintiff was plainly unreasonable, or the original 
commitment manifestly improper and unnecessary. 

Sec. 267. When real estate may be sold. The directors of any 
house of refuge and correction, shall have power to negotiate for the 
sale of any real estate owned or held by donation or purchase, or 
either, for the use and benefit of such house of refuge and correction, 
when such real estate shall not be necessary for the accommodation of 
the inmates of such institution; and upon the completion of such 
negotiations, and their approval by the council, the directors shall pre¬ 
sent to the council the terms and conditions of the sale agreed upon. 

Sec. 268. Deed and proceeds of sale. The council shall, there¬ 
upon, order the execution of a deed or deeds, for such real estate, to 
the parties named by the directors, in conformity to the terms agreed 
upon; and the proceeds of such sale or sales shall be placed in the 
corporation treasury to the credit of the house of refuge and correction 
fund, and be held and disbursed as other funds are held and disbursed 
for such institution. 

Sec. 269. Action against directors, how brought. Actions may 


[ 72 ] 

be brought by and against the directors of the bouse of refuge and 
correction, before any court of competent jurisdiction; and process 
may be served by leaving a copy of tbe writ with any director, or at 
the office of such institution, with any officer thereof. 

Sec. 270. This act not to affect refuges heretofore established. 
Any house of refuge and correction heretofore established and gov¬ 
erned under the provisions of an act entitled “ an act to authorize the 
establishment of houses of refuge,” passed April 16, 1857, shall con¬ 
tinue to be governed, in all respects under said act, as though this act 
had not been passed. 


CHAPTER XX. 

WORK-HOUSES. 1 


Section. Section. 

271. Establishment and government of work- 277. Prompt commitment, and fees. 

houses. 278. Discharge, and record thereof. 

272. Direction and management thereof. 279. Punishment for escape, or attempt to 

273. Appointment and term of office of direc- escape. 

tors. 280. Excess of expenses, how raised. 

274. Powers and duties of the board. 281. Officers to have police powers. 

275. Commitment of violators of law. 282. Infauts received, where there is no house 

276. Confinement and labor. of refuge. 

Sec. 271. Establishment and government of work-houses. The 
council of any city or incorporated village shall have power to estab¬ 
lish, erect and maintain a work-house, and such work-house, and any 
work-house heretofore established, shall be governed by the provisions 
of this chapter. 

Sec. 272. Direction and management thereof. The direction, 
management and control of any work-house, and the maintenance and 
care of the convicts therein, shall be vested in a board of five direct¬ 
ors, who shall be called, “ The Board of Work-house Directors ; ” and 
said directors shall be freehold electors of the corporation, and serve 
without compensation. 

Sec. 273. Appointment and term of office of directors. Said di¬ 
rectors shall be appointed by the mayor, with the consent of the coun¬ 
cil, and shall hold their office for five years, except at the first appoint¬ 
ment one shall be appointed to serve for one year, one for two years, 
one for three years, one for four years, and one for five years, and 
thereafter one shall be appointed annually. 


i Act of 1852, § 78, as amended April 8,1856; Act of March 25,1863 (60 
O. L. 44); Act of March 9,1866 (63 O. L. 30); Act of April 13,1867 (64 O. 
L. 130.) 

A bov, under sixteen jmars of age, convicted of forgery in Hamilton 
county, and sentenced to confinement at hard labor in the House of 
Refuge, and to pay the costs of prosecution, was incompetent as a wit¬ 
ness so long as his sentence remained unreversed or otherwise unannulled. 
Poage v. State, 3 O. S. 229. And although, under the Code of Criminal 
Procedure, § 139, no person is disqualified as a witness in a criminal 
prosecution by reason of his conviction of a crime, the law being in that 
respect the same in civil and criminal cases, yet such conviction may be 
shown to affect the credibility. 




[73] 

Sec. 274. Powers and duties of the hoard. The said board shall 
have the same powers, perform the same duties and he governed by 
the same regulations, so far as applicable, in the maintaining, erect¬ 
ing or enlarging any buildings for work-house purposes, or of any ad¬ 
dition or additions thereto, or of the shops and grounds therewith 
connected, and of the management of the affairs thereof and care of 
the convicts therein, as are conferred upon and required of the board 
of directors of houses of refuge and correction, as provided in chapter 
nineteen; and the powers and duties of the council in respect to such 
board shall be the same, so far as applicable, as are provided in said 
chapter. 

Sec. 275. Commitment of violators of law. As soon as any 
work-house shall be established and notice thereof published, as re¬ 
quired in chapter nineteen, in respect to houses of refuge and cor¬ 
rection, it shall thereafter be the duty of any court, magistrate or 
mayor, in the county where such work-house is established, authorized 
by law to sentence or commit to the county jail or corporation prison, 
any person over the age of sixteen years, convicted of a violation of 
any of the laws of this state or of the ordinances of the corporation, 
to sentence such person to imprisonment in such work-house. 

Sec. 276. Confinement and labor. Any person so sentenced shall 
be received into such work-house, and shall be there kept and confined 
at labor, and shall be subject to the rules, regulations and discipline 
thereof until the expiration of such sentence, when such party shall 
be discharged. 

Sec. 277. Prompt commitment and fees. It shall be the duty of 
all officers having the execution of the final sentence of any court, 
magistrate or mayor, sentencing convicted persons to such work-house, 
to cause such convicts to be conveyed to the same as soon as practica¬ 
ble after the sentence is pronounced; and all officers shall be paid the 
fees therefor allowed by law for similar services in other cases, such 
fees to be paid, when the sentence is by the court, out of the county 
treasury, and when by the magistrate, out of the township treasury. 

Sec. 278. Discharge , and record thereof. The said board shall have 
power to discharge, for good and sufficient cause, any person committed 
to such work-house; but a record of all such discharges shall be kept 
and reported to the council in the annual report of the board, giving 
a bfief statement of the reasons therefor. 

Sec. 279. Punishment for escape , or attempt to escape. Any per¬ 
son lawfully committed to said work-house, who shall escape there¬ 
from, or break the same with intent to escape therefrom, or who shall 
attempt by force or violence, or in any other way, to escape from said 
work-house, whether such escape be effected or not, shall, upon con¬ 
viction thereof, before the police court or court of common pleas for 
the proper county, be punished by confinement in said work-house, for 
a term not exceeding double the term for which such person was so 
sentenced, to commence from and after the expiration of his or her 
former sentence. 

Sec. 280. Excess of expenses, how raised. The expense of main- 


[ 74 ] 

taming and administering tlie affairs of said work-house, over and 
above all receipts for the labor of persons confined therein, shall he 
audited and paid, from time to time, by the council of the corporation, 
and a tax for said expenses shall be levied and collected, as a part of 
the ordinary expenses of the corporation. 

Sec. 281. Officers to have 'police powers. The superintendent, 
assistant superintendent and guards of said work-house, shall have 
such powers of policemen as may be necessary for the proper per¬ 
formance of the duties of their position. 

Sec. 282. Infants received , where there is no house of refuge. 
The council of any corporation owning a work-house, but not owning 
a house of refuge and correction, shall have power to provide for re¬ 
ceiving into such work-house, infants in the manner prescribed in 
chapter nineteen; and the board of directors of such work-house shall 
have the power to make such rules and regulations, in regard to the 
admission of such infants and their management, as are provided in 
said chapter for the government and management of the inmates of 
houses of refuge and correction. 


CHAPTER XXI. 


HOSPITALS. 1 

Section. Section. 

283. Board of hospital commissioners. 291. Contracts to be advertised, and given to 

284. Who shall compose the board. lowest bidder. 

285. Their term of office. 292. Bids to be accompanied by bond, etc. 

286. Their powers, compensation of appoint- 293. Contract with lowest bidder. 

ees, etc. 294. Bids to be sealed, indorsed, etc. 

287. Regular meetings, and record thereof. 295. Board to have management and control 

288. No expenditure without authority of of hospitals. 

board; no member to be interested, etc. 296. Council may enter into agreement with 

289. Plans, specifications, etc. any corporation, etc. 

290. Terms of contracts, etc. J297. Applicability to existing hospitals. 

Sec. 283. Board of hospital commissioners. Whenever the coun¬ 
cil of any city or incorporated village shall enter upon and take pos¬ 
session of any grounds purchased, appropriated, or otherwise obtained 
for hospital purposes, and shall, by resolution or ordinance, determine 
to erect thereon or rebuild a hospital, the erection and repair thereof, 
or any addition or additions thereto, and the management, direction 


i Act of March 5, 1860 (4 Curwen, ch. 2068); April*6,1866 (63 0. L. 152); 
April 13.1867 (64 O. L. 139); April 9,1868 (65 O. L. 83); May 5,1868 (65 
O. L. 148.) 

The faculty of the Medical College of Ohio are bound to render only 
so much personal service and advice to the Commercial Hospital as is con¬ 
sistent with their character as professors, and the duties necessarily at¬ 
tached to that office and their private practice. 

They are entitled to appoint as many resident physicians to the Com¬ 
mercial Hospital as may be requisite to discharge the duties of resident 
physicians. 

The city of Cincinnati is liable for reasonable compensation to resident 
physicians at the Commercial Hospital so appointed. Alexander v. Gin - 
cinnati , 2 Handy, 183. 




[75] 

and control of the same, shall he vested in a hoard of five commis¬ 
sioners, to he called the Board of Hospital Commissioners of such 
corporation. 

_ Sec. 284. Who shall compose the hoard. Such hoard shall con¬ 
sist of the mayor of the corporation, who shall, by virtue of his office, 
be the president of the board, and four trustees, to be appointed by 
the mayor, with the consent of the council, who shall be resident free¬ 
hold electors of the corporation, and such commissioners shall not re¬ 
ceive any compensation for their services. 

Sec. 285. Their term of office . The term of office of the appointed 
members of said board, shall be four years, but the members first ap¬ 
pointed shall hold their office, respectively, as shall be determined by 
lot, at the first meeting of said board, for the period of one, two, 
three and four years, and thereafter one member shall be appointed 
each year for the full term of four years, and a majority of said board 
shall constitute a quorum. 

Sec. 286. Their powers, compensation of appointees, etc. Such 
board shall have power to appoint a clerk, an architect and a superin¬ 
tendent, and other necessary employes, and fix their compensation, and 
adopt a suitable plan for such hospital, and make all contracts for the 
erection and furnishing the same; but the salary of such appointees, 
and the plan of such hospital, before any contract for the erection of 
the same is entered into, shall be submitted to and approved by the 
council. 

Sec. 287. Regular meetings, and record thereof. The said board 
shall hold regular meetings at such time and place as may be agreed 
upon, and shall cause to be kept, a full record of all their proceedings ; 
and no contract entered into by them, shall be valid until assented to 
at a regular meeting of the board, and concurred in by a majority of 
all the members thereof, and such assent be entered on the minutes of 
their proceedings. 

Sec. 288. No expenditure without authority of hoard; no mem¬ 
ber to he interested, etc. No money shall be paid for the erection, re¬ 
building or repair of any hospital, or of any addition or additions 
thereto, or for supplies therefor, unless first authorized by said board, 
and upon a warrant of the proper officer of the corporation, and no 
member of said board shall be interested, directly or indirectly, in any 
contract concerning said institution. 

Sec. 289. Plans , specifications, etc. It shall be the duty of said 
board, before entering into any contract for the erection of any hos¬ 
pital building, to cause plans, specifications, detailed drawings and 
forms of bids to be prepared; and when adopted by them they may, 
at their discretion, cause the said plans and drawings to be litho¬ 
graphed, and the specifications and forms of bids, and a form of con¬ 
tract and bond, to be prepared by the attorney of the corporation, and 
have the same printed for distribution among the bidders. 

Sec. 290. Terms of contracts, etc. All contracts shall be made in 
the name of the corporation, and it shall be stipulated therein that 
the contractors will not execute any extra work, or make any modifi- 


[76] 

cations or alterations of the work mentioned in the specifications and 
plans, unless ordered in writing by the board; and that they will not 
claim any pay for the same unless such written order is given, and the 
extra price of compensation fixed and agreed upon; and copies of the 
said plans and drawings, attested by the contractor, and the original 
bids, specifications and contracts, shall be deposited in the office of the 
clerk of the corporation. 

Sec. 291. Contracts to be advertised, and given to lowest bidder. 
The said board shall not enter into any contract for work or materials, 
except as relates to procuring plans, drawings, specifications and forms 
of bids, without first causing thirty days notice to be given in one or 
more newspapers of general circulation in the corporation, that sealed 
proposals will be received for doing the work or furnishing the mate¬ 
rials ; and they shall enter into contract with the lowest bidder, for the 
whole or any part of the work, upon his giving bond to the corpora¬ 
tion, with security to be approved by the board, that he will perform 
such work or furnish the materials in accordance with his contract. 

Sec. 292. Bids to be accompanied by bond , etc. All bids shall be 
accompanied with a bond, signed by sufficient sureties for the accept¬ 
ance of the contract, if awarded by the board, to fully secure any 
amount of difference between the amount of such bid and the next 
higher bid, and such amount shall be collected by the board and paid 
into the hospital fund in case of refusal by the bidder to enter into 
contract according to his bid, within such reasonable time as said 
board may determine. 

Sec. 293. Contract with lowest bidder. The board shall enter into 
contract with the lowest responsible bidder upon his giving bond to 
the corporation, with .such surety as the said board shall approve, that 
he will perform such work and furnish materials in accordance with his 
contract; and on failure of such bidder, within a reasonable time, to 
be fixed by said board, to enter into bond with the .surety before pro¬ 
vided, then a contract may be made with the next lowest responsible 
bidder, and so on, until a contract is completed by the contractor 
giving bond as aforesaid. 

Sec. 294. Bids to be sealed , indorsed , etc. All bids shall be in¬ 
closed in a sealed envelope and deposited with the clerk of the board, 
and such sealed envelope shall have indorsed thereon the nature of the 
same, and all bids shall be opened at a regular meeting of the board. 

Sec. 295. Board to have management and control of hospitals. 
The said board shall have the entire management and control of such 
hospital when the same has been completed and ready for use, and of 
the furnishing thereof, subject to the ordinances of the council, and 
shall establish such rules for its government and the admission of 
persons to its privileges, as they may deem expedient; and it shall 
also have power to employ a superintendent, steward, physicians, nurses, 
and such other employes as they may deem necessary, and fix the 
compensation of all persons so employed, subject to the approval of 
the council. 

Sec. 296. Council may enter into agreement with any corpora - 


[ 77 ] 

tion, etc. The council may enter into an agreement with the corpora¬ 
tion or association, organized for charitable purposes in such municipal 
corporation, for the erection and management of a hospital for the 
sick and disabled, and for a permanent interest therein, to such ex¬ 
tent and upon such terms and conditions as may be agreed upon be¬ 
tween the council and such corporation or association ; and the council 
shall provide for the payment of the amount agreed upon, for any in¬ 
terest so acquired, either in one payment or installments, or so much, 
from year to year, as the parties may stipulate. 

Sec. 297. Applicability to existing hospitals. The provisions of 
this chapter shall, so far as applicable, govern hospitals heretofore es¬ 
tablished and erected. 


CHAPTER XXII. 

INFIRMARIES . 1 

Section. Section. 

298. Board of infirmary directors. 301. Their care for the inmates, separation 

299. Their election, term and compensation. of sexes, etc. 

300. To be governed by regulations applica- 302. Overseers of the poor to be appointed. 

ble to hospitals. 

Sec. 298. Board of infirmary directors. The management of af¬ 
fairs of all corporation infirmaries now existing, or which may here¬ 
after be established, and the care of the inmates thereof; the erection 
and enlargement of all infirmary buildings, and of all additions there¬ 
to ; and the repair and furnishing thereof, and improvement of the 
grounds therewith connected ; and the granting of outdoor relief to the 
poor, shall be vested in a board of three directors, which shall be 
called “ The Board of Infirmary Directors.’’ 

Sec. 299. Their election , term and compensation. The said direc¬ 
tors shall be electors and be elected by the qualified voters of the cor¬ 
poration, and shall hold their office for three years, except that at 
the first election one of the said directors shall be chosen to serve for 
one year, one for two years, and one for three years, and thereafter one 
shall be elected annually. They shall not receive any compensation 
for their services ; provided, that in cities of the first class, having a 
population of over one hundred thousand inhabitants, such directors 
shall receive such compensation as the city council may by ordinance 
provide. 

Sec. 300. To be governed by regulations applicable to hospitals. 
In the management of any infirmary, in the care and treatment of the 


1 Act of 1852, § 77, as amended April 29,1854 (4 Curwen, ch. 1470); Act 
Of April 8, 1856 (4 Curwen, ch. 1572); Act of March 1, 1861 (58 O. L. 25.) 

Where a member of the board of directors of a county infirmary was, 
by said board, appointed to the office of superintendent of the County 
Infirmary, he still continuing to hold the office of director: Held, that the 
duties of the two offices are incompatible, and can not be legally held by 
the same person at the same time, and such appointment was, therefore, 
illegal and void. Louthan v. Taylor , 12 O. S. 130. 




[ 78 ] 

inmates thereof, in the erection, enlargement or repair of any building 
for infirmary purposes, or of any addition or additions thereto, the 
said directors shall have the same powers, be governed by the same 
regulations, and perform the same duties, so far as applicable, as are 
vested in and imposed on the commissioners of hospitals, as provided 
in chapter twenty-one; and the power of the council in relation to 
such infirmaries, and the conduct of the directors thereof, shall he the 
same, so far as applicable, as provided in said chapter in relation to 
hospitals. 

Sec. 301. Their care for the inmates, separation of sexes, etc. 
The said directors shall further see that the inmates of such infirmary 
are comfortably provided for and kindly treated, and they may, when¬ 
ever deemed necessary, provide for the care and support of the males 
and females in separate buildings, or in separate departments of the 
same building. 

Sec. 302. Overseers of the poor to he appointed. The council 
shall provide, by ordinance, for the appointment by the mayor, sub¬ 
ject to the approval of the council, of such number of persons as may 
be deemed necessary, not to exceed one in each ward, to act as over¬ 
seers of the poor, and shall prescribe the duties of such persons in re¬ 
lation to the care of the poor, and their removal when necessary, to 
the infirmary, but such persons shall not receive any compensation for 
their services. 


CHAPTER XXIII. 

BOARD OF HEALTH. 1 


Section. 

303. Board of health. 

304. Term of office of members. 

305. May appoint health officer, clerk, etc. 

306. Powers and duties of board. 

307. May restrain persons infected, etc. 

308. Punishment of infected person for es¬ 

caping, etc. 

309. Regulations to secure public health. 

310. Duties as to brothels. 

311. Disposition of minor prostitutes. 

312. Where female shall be treated as a va¬ 

grant. 

313. Treatment of diseased female; expense 

thereof. 

314. Suit for recovery of such expense. 


Section. 

315. Nuisances to be abated. 

316. Temporary suspension of order of abate¬ 

ment. 

317. Modification or reaffirmation of order. 

318. Sanitary police to be assigned. 

319. When such police shall be dismissed. 

320. Vaccination to be encouraged and pro¬ 

vided for. 

321. Sanitary report; its contents, etc. 

322. Penalty for violation of order of board 

of health. 

323. Violation by a corporation. 

324. Prosecutions, how instituted. 

325. Provision for expenses of board of health. 


Sec. 303. Board of health. Whenever the council of any city or 
incorporated village shall establish a board of health, such board shall 


i Act of 1852, § 62, as amended May 1,1854 (4 Curwen, ch. 1506); March 
29,1867 (64 O. L. 76); April 13, 1867 (64 O. L. 147); April 16, 1867 (64 O. 
L* 242.) 

An application for a restraining order alleged, that plaintiffs were en¬ 
gaged in the business of slaughtering hogs at their houses in Cincinnati: 
that they received large droves from railroads and steamboats and drove 
them through the city to their slaughtering houses; that it habitually 
happened, from overloading on the cars and other casualties, that one or 




[ 79 ] 

be composed of tbe mayor, who shall be president by virtue of his of¬ 
fice, and six members, to be appointed by the council, who shall serve 
without compensation, and a majority of whom shall be a quorum. 
Sec. 304. Term of office of members. The term of office of the 


more of the animals were received dead; that it had been the custom of 
plaintiffs to receive such animals, when recently deceased, before they 
had become offensive, and transport them on drays through the streets to 
their tanks, where they were rendered by the aid of steam into lard, 
yielding a profitable result; that the city had contracted with T. to re¬ 
move all the dead animals from her limits beyond the boundary of the 
corporation, securing a monopoly of collecting together and removing all 
offensive animal and vegetable substances; that under this authority 
said T. assumed to take into his possession the carcass of every animal 
found dead in the streets, without permitting the owners to use and ap¬ 
propriate the same in their ordinary business, and that the city police 
aided him in so doing; that the ordinance under which the city council 
had granted these rights to defendant also prohibited all persons from 
removing or carrying in or through the public streets the carcass of a 
dead animal without a permit from the president of the board of health, 
prescribing the conditions of removal. 

•‘The only practical question is this,” said Storer, J.: “Has the city 
council exceeded its powers, either in enacting the ordinances, or in en¬ 
tering into the contract with the defendant, T. ?” 

“ By the 62d section of the law of 1852, by which cities of the first class 
are empowered to legislate, express authority is granted to the city coun¬ 
cil to make all needful regulations to promote the public health and pre¬ 
vent the prevalence of disease. The means to reach that end must be left 
to the wise discretion of the bodj r which enacts the by-law.” * * * 

“ The ordinance rests upon the assertion, which is sustained by all ex¬ 
perience, and of which the court is bound to take notice, that animals 
dying of disease, or smothered on board of a boat, or found dead in a 
railroad car, whether from exhaustion or exposure to the cold or heat, 
are unfit for food, and, therefore, the acts mentioned in the ordinance 
may well be prohibited, more especially as the law of the state forbids 
the offering for sale of all such animal substance in the public markets.” 
* * * ‘ ; Comparing the contract of T. with the ordinance, the court 

does not perceive that any fair or reasonable construction can lead to 
the conclusion that they are beyon.d the corporate power of the city offi¬ 
cials, or in derogation of private right.” 

“ The owner, it must be admitted, may claim a permit from the board 
of health to convey his property beyond the city boundary; but he can 
not and ought not to be allowed to manufacture, within the city, the car¬ 
cass into any other substance; and there is provision in the contract for 
remuneration to the owner if he is not disposed to remove the carcass 
himself.” Injunction refused. Morgan v. Thompson, Superior Court of 
Cincinnati. MS. 

Morgan was subsequently fined in the police court for removing and 
carry ing through the streets of said city the carcasses of three hogs, with¬ 
out having procured from the president of the board of health a permit 
so to do, contrary to the ordinance passed June 15, 1866. 

On certiorari from the court of common pleas, Murdock, J., Held, that 
it was not only the right, but it was the duty of the city council to provide 
for the health of the public of the city, and that the ordinance was within 
the scope of their powers; that the ordinance requiring any person re¬ 
moving the carcasses of dead animals to get a permit from the president 
of the board of health was reasonable, and therefore legal; and that the 
plaintiff in certiorari, carrying carcasses of dead animals through the 
streets without such permit, was properly fined, no matter what reason 
the said president may have given for the refusal of the permit. 



[ 80 ] 

members of sucb board shall be three years from the date of appoint¬ 
ment, except that those first appointed shall be classified as follows : 
Two to serve for three years, two for two years, and two for one 
year, and thereafter two shall be appointed annually. 

Sec. 305. May appoint health officer, clerk , etc. Such board 
shall have power to appoint a health officer, a clerk, as many ward or 
district physicians as they may deem necessary for the care of the sick 
poor, and such other persons as may be in need, and to define their 
duties and salaries; and all such appointees shall serve during the 
pleasure of the board. 

Sec. 306. Powers and duties of hoard. The council may grant 
such board power to abate and remove all nuisances in the corpora¬ 
tion, and assess the costs and expense of the same upon the property 
situate therein; which assessment, when duly certified by the presi¬ 
dent of the board to the county auditor, shall become a lien, to be col¬ 
lected the same as any other tax in favor of the corporation, and to com¬ 
pel the proprietors or owners, agents or assignees, occupants or tenants 
of the lot or property, house or building, upon or in which any nui¬ 
sance may be, to abate and remove the same; to regulate the construc¬ 
tion and arrangement of all water-closets and privy-vaults, and the 
emptying and cleaning of such vaults ; to create a complete and accu¬ 
rate system of registration of births, deaths and interments, occurring 
in or near such corporation, for purposes of legal and genealogical in¬ 
vestigations, and to furnish facts for statistical, scientific, and partic¬ 
ularly for sanitary inquiries; and when complaint is made, or a rea¬ 
sonable belief exists that an infectious or contagious disease prevails 
in any locality or house, to visit such locality or house, make all nec¬ 
essary investigation by inspection, and on discovering that such in¬ 
fectious or contagious diseases exist, to send the person or persons so 
diseased to the pest-house or hospital. 

Sec. 307. May restrain persons infected, etc. When any person 
is found afflicted with infectious or contagious disease, and is removed 
to a pest-house or hospital, the board of health is empowered to use 
all necessary means to restrain such patient of his or her liberty until 
the danger of infection or contagion from said disease shall have 
ceased. 

Sec. 308. Punishment of infected person for escaping, etc . If 
any person so removed to any pest-house or hospital, shall willfully 
leave or escape therefrom before the physician of such pest-house or 
hospital shall give a certificate of restored health, the person so offend¬ 
ing shall, upon conviction thereof before the mayor or police judge, be 
fined in any sum not less than five nor more than fifty dollars, or be 
imprisoned not less than one nor more than ten days, as the mayor or 
judge may determine. 

Sec. 309. Regulations to secure public health. The council may 
grant power to such board to make and pass all such orders and regu¬ 
lations as they shall, from time to time, deem necessary and proper 
for the public health and for the prevention of diseases ; and such 


[ 81 ] 

orders and regulations, when adopted, shall have all the force and ef¬ 
fect of ordinances of such corporation. 

Sec. 310. Duties as to brothels. The board of health in cities of 
the first class, and, whenever required by resolution of the council, in 
cities of the second class, are authorized and directed to enter brothels 
and houses of assignation, and make enumerations, as often as they 
may deem necessary, of the female inmates therein, and make a record 
of the same, and of the age of such female inmates, in a book to be kept 
in the office of said board of health, to be open to the inspection of the 
members of the board, the police and others. 

Sec. 311. Disposition of minor prostitutes. When any female 
under the age of eighteen years, or believed to be under that age, is 
found in such brothel or house of assignation, it shall be the duty of 
the board of health to return such female to her home, if she have any, 
and if such female have no home, then she shall be consigned to the 
house of refuge and correction of the corporation, or such benevolent 
association established for the reformation of abandoned females, as the 
board of health may select. 

Sec. 312. Where female shall be treated as a vagrant. No fe¬ 
male shall be consigned to a house of refuge and correction, or benevo¬ 
lent institution, against her will; but in case she declines the care and 
protection tendered her, it shall be the duty of the board to turn said 
female over to the mayor or police court to be tried as a vagrant. 

Sec. 313. Treatment of diseased female—expense thereof. 
Whenever any female is found, in any house of ill-fame or assignation, 
affected with contagious or infectious disease, and is removed to, or 
if such person shall apply for admission to, any hospital or pest-house 
for treatment, the costs of such removal, and the expense of boarding 
and washing, while in such hospital or pest-house, shall be paid by 
the proprietor or proprietors of the house of ill-fame or assignation 
from which such patient was removed, or in which she was last an in¬ 
mate ; and such payment shall be made before such patient is dis¬ 
charged from such hospital or pest-house ; and such expense of board¬ 
ing, washing and medical attendance shall be a lien upon the house 
and premises in which such female shall have been so found, which 
lien may be enforced as other liens for the security of money. 

Sec. 314. Suit for recovery of such expense. If the proprietor 
or proprietors of such house of ill-fame or assignation shall fail or re¬ 
fuse to pay such expense, legal proceedings shall be immediately insti¬ 
tuted against such proprietor or proprietors of such house of ill-fame 
or assignation, and such patient shall be held as a witness in the case. 

Sec. 315. Nuisances to be abated. Whenever any building, 
erection, excavation, premises, business, pursuit, matter or thing, or 
the sewerage, drainage or ventilation thereof, in the opinion of said 
board of health, whether in whole or in part, be in a condition or in 
effect dangerous to life or health, the said board may declare the 
same, to the extent it may specify, a public nuisance, or dangerous to 
life and health ; and the said board may order the same to be removed, 
abated, suspended, altered, or otherwise improved or purified, as said 


[ 82 ] 

order shall specify, and shall cause said order, before its execution, to 
be served on the agent, owner, occupant or tenant, or such of them as 
are in the corporation and can he found. 

Sec. 816. Temporary suspension of order of abatement. If any 
party so served shall, before the execution of the order is commenced, 
apply to said hoard to have said order or its execution stayed or modi¬ 
fied, it shall be the duty of the board to temporarily suspend or modify 
said order, and to give such party or parties, as the case, in the opin¬ 
ion of the board, may require, a reasonable and fair opportunity to he 
heard before said board, and to present proofs and facts against said 
declaration and the execution of said order, or in favor of its modifica¬ 
tion. 

Sec. 317. Modification or reaffirmation of order. The board 
shall enter upon its minutes such facts and proofs as it may receive, 
and its proceedings on such hearing, and thereafter may rescind, mod¬ 
ify or reaffirm its said declaration and order, and require execution of 
said original, or of a new or modified order to he made, in such form 
and effect as it may finally determine. 

Sec. 318. Sanitary police to be assigned. The mayor shall have 
power, and it shall be his duty to detail a portion of the regular police 
force of the corporation for sanitary duty, or to make new appoint¬ 
ments for that purpose, whenever in the opinion of the board the pub¬ 
lic health and sanitary condition of the corporation may require. And 
such policemen, when so detailed, or when appointed, shall he known 
as the “ Sanitary Police ; ” the number comprising the said sanitary 
police to he determined by the board of health* according to the exi¬ 
gencies of the case; and said sanitary police shall be subject to the 
exclusive direction and control of said board for the enforcement of 
proper sanitary measures, and for the promotion of the public health. 

Sec. 319. When such police shall be dismissed. Whenever, in 
the opinion of the hoard of health, the services of the sanitary police 
are no longer required, they shall, on recommendation of the board of 
health, be returned to duty as regular policemen, or he dismissed, as 
the mayor may direct. 

Sec. 320. Vaccination to be encouraged and provided for. 
Said board may take measures and supply agents, and afford induce¬ 
ments and facilities for gratuitous vaccination and disinfection; and 
may afford medical relief to and among the poor of the corporation, as 
in its opinion the protection of the public health may require; and 
during the prevalence of any epidemic disease, may provide temporary 
hospitals for such purposes. 

Sec. 321. Sanitary report—its contents , etc. It shall he the duty 
of said board, on or before the first Monday of March in each year, 
to make a report, in writing, to the council of the corporation, upon 
the sanitary condition and prospects thereof; and such report shall set 
forth generally the statistics of deaths, the action of said board and of 
its officers and agents, and the names thereof for the past year; and 
may contain other useful information, and shall suggest any further 


[83] 

legislative action deemed proper for the better protection of life and 
health. 

Sec. 322. Penalty for violation of order of board of health. 
Any person violating any provision of this chapter, or any order of 
the hoard of health made in pursuance thereof, or obstructing or in¬ 
terfering with the execution of any such order, or willfully and ille¬ 
gally omitting to obey any such order, shall, on conviction, he fined 
in any sum not exceeding one hundred dollars, or imprisoned for any 
time not exceeding ninety days, or both, at the discretion of the court; 
but no person shall he imprisoned under this section for the first 
offense. 

Sec. 323. Violation by a corporation. If such violation, ob¬ 
struction, interference or omission be by a corporation, such corpora- 
tion shall forfeit and pay to the proper city or village, any sum not 
exceeding one hundred dollars, at the discretion of the court, to be col¬ 
lected in civil action brought in the name of such city or village; and 
any officer of such corporation consenting thereto, shall he subject to 
imprisonment as above provided. 

Sec. 324. Prosecutions , how instituted. Prosecutions and the 
civil action provided for in section three hundred and twenty-three 
under this chapter, shall be instituted before any tribunal within the 
municipal corporation having jurisdiction thereof. 

Sec. 325. Provision for expense of board of health. Where ex¬ 
penses shall be incurred by the board of health, under the provisions 
of this act, it shall be the duty of the council, upon application and 
certificate from said board of health, to pass the necessary appropria¬ 
ting ordinances to pay the expenses so incurred and certified. 


CHAPTER XXIV. 

FIRE DEPARTMENT. 1 


Section. Section. 

, 326. Council shall have power to establish fire 330. To invest fire-engineer with power, etc. 
department. 331. Engineer may administer oaths, etc. 

327. To purchase fire-engines, etc. 332. His compensation. 

328. To erect necessary buildings, etc. 333. Council may prohibit erection of wooden 

329. To regulate the erection of structures, buildings, etc. 

etc. 

Sec. 326. Council shall have power to establish five department. 
The council of any city or incorporated village shall have power to 
establish all necessary regulations to guard against the occurrence of 
fires, and protect the property and lives of the citizens against damage 
and accidents resulting therefrom; and for this purpose to establish 
and maintain a fire department, and provide for the establishment and 
organization of fire-engine and hose companies, and provide such by¬ 
laws and regulations for the government of such companies as may he 
deemed necessary and proper. 


i Act of 1852, § 21, as amended May 5,1868; 65 O. L. 147. 




[84] 

Sec. 827. To purchase fire-engines, etc. The council shall also 
have power to purchase for its own use, or for the use of such com¬ 
panies, all necessary fire-engines (either steam or hand), hose car¬ 
riages and hose, and all such other apparatus and instruments as shall 
be deemed necessary to the extinguishment of fires, and to establish 
lines of fire-alarm telegraph within the limits of the corporation. 

Sec. 328. To erect necessary buildings, etc. The council shall 
also have power to provide or erect all necessary and suitable build¬ 
ings containing rooms for fire-engines, hose-carriages, fire apparatus 
and instruments, and for the meetings of the fire and hose companies. 

Sec. 329. To regulate the erection of structures, etc. The council 
shall have power to regulate the erection of houses and business struc¬ 
tures, and, on the petition of the owners of not less than two-thirds of 
the ground included in any square, to prohibit the erection on any 
such square of any building, or of any addition to any building more 
than ten feet high, unless the outer walls be made of brick and mortar, 
or of stone and mortar, or of iron, or stone or brick and mortar, and to 
provide for the removal of any buildings or additions erected contrary 
to such prohibition. 

Sec. 330. To invest fire-engineer with power, etc. The council 
shall have power to invest the fire-engineer, or any other officer of the 
fire or police department, with the power, and impose on him the duty, 
to be present at all fires, investigate the cause thereof, examine wit¬ 
nesses and papers, and compel the appearance and production of the 
same, and to do and perform all such other acts as may be necessary 
to the effective discharge of such duties. 

Sec. 331. Engineer may administer oaths, etc. Such officer shall 
have power to administer oaths, make arrests, and enter any building 
for the purpose of examination, which, in his opinion, is in danger 
from fire; and he shall report his proceedings to the council at such 
times as may be required. 

Sec. 332. His compensation. For his services herein specified, such 
fire-engineer or other officer shall receive such compensation as the 
council may prescribe. 

Sec. 333. Council may prohibit the erection of wooden build¬ 
ings, etc. In all cities of the first class, the council shall have power 
to prohibit, within such limits as may be deemed proper, the erection 
of any building, unless the outer walls thereof be constructed of iron, 
brick and mortar, or stone and brick and mortar. 


I 


\ 


[ 85 ] 


CHAPTER XXV. 


WATER-WORKS. 1 


Section. 

834. Council may construct and regulate wa¬ 
ter-works. 

335. Trustees of water-works. 

33G. Their salary and duties. 

337. By-laws, etc. 

338. Water rents. 

839. Disposition of surplus. 

340. Monthly reports and weekly deposits. 

341. Money to be kept as a distinct fund. 

342. Trustees to make contracts, etc. 

343. Annual investigation. 

344. No charge for water to extinguish fires, 

etc. 

345. Protection of attachments, etc. 

346. Rules as to contracts. 

347. Contractors must give bond, etc. 


Section. 

348. Extension of aqueducts, etc., beyond 

corporation limits. 

349. Construction and regulation thereof. 

350. Water-works in contiguous cities or vil¬ 

lages. 

351. Construction and regulation thereof. 

352. Contracts to supply contiguous cities or 

villages. 

353. Cost thereof, how raised. 

354. Works to be joint property, etc. 

355. Termination of contract upon annexa¬ 

tion. 

356. Tax to be levied for payment of interest. 

357. Payment of interest on loans. 

358. Tax to be a lien upon property. 

359. Laying of water-pipes in highways. 

360. Extent of jurisdiction. 


Sec. 334. Council may construct and regulate water-works. The 
council of any city or incorporated village shall have power to enter 
upon and take possession of any land obtained for the construction or 
extension of water-works, reservoirs, or the laying down of pipe, and 
also any water rights or easements connected with the use of water; 
and any land, water right or easement so taken possession of for water¬ 
works purposes, shall not he used for any other purpose, except by au¬ 
thority of the trustees and consent of the council. 

Sec. 335. Trustees of water-works. The council of any city or 
incorporated village in which water-works are or may he situated, or 
in progress of construction, shall establish a board of three trustees, 
to be known as the Trustees of Water-Works, who shall be elected by 
the qualified electors of the corporation, and hold their office for the 
term of three years, exeept that, at the first election under this act, 
one shall be chosen for one year, one for two years, and one for three 
years ; and thereafter one of the trustees shall be elected annually. 

Sec. 336. Their salary and duties. Said trustees shall receive a 
fixed salary, to be determined by the council, and they shall manage, 
conduct and control the works, furnish supplies of water, collect water 
rents, and appoint all neeessary officers and agents, and determine the 
term of office and the amount of the salaries of the officers and agents 
so appointed. 


i Act of March 11,1853, as amended March 28,1859 (4 Curwen, cli. 1978); 
March 5, 1856 (4 Curwen, ch. 1541); May 1,1854 (4 Curwen, ch. 1475); 
March 26, 1860 (4 Curwen, ch. 2105); March 25, 1863 (60 O. L. 44); April 
5, 1866 (63 O. L. 144); January 26, 1867 (U O. L. 8); April 6, 1865 (62 O. 
L. 86); March 11.1867 (64 O. L. 50); February 15,1868 (65 O. L. 9); April 
3, 1868 (65 O. L. 77); Act of 1852. § 22. 

Under the Act of March 11,1853, § 6, it was held, that “ w T here a city has 
no water-works situate therein, and has done no more than to authorize 
the borrowing of money for the purpose of constructing water-works, an 
ordinance establishing a board of trustees of water-works is premature 
and unwarranted, and such board may be legally abolished by the repeal 
of such ordinance. State ex rel Waddle v. City Cleric if Chillicothe , 7 O. S.355. 



[ 86 ] 

Sec. 337. By-laws , etc. Said trustees shall he authorized to make 
such by-laws and regulations as they may deem necessary for the 
safe, economical and efficient management and protection of the water¬ 
works, and such by-laws and regulations shall have the same validity 
as ordinances, when not repugnant thereto, or to the constitution and 
laws of the state. 

Sec. 338. Water rents. For the purpose of paying the expenses of 
conducting and managing water-works, the trustees of water-works 
shall have power to assess and collect, from time to time, a water 
rent of sufficient amount, in such manner as they may deem most 
equitable, upon all tenements and premises supplied with water. 

Sec. 339. Disposition of surplus. Should there be any surplus, 
after paying the expenses of conducting and managing the water¬ 
works, the same may be applied to the repair, enlargement or exten¬ 
sion of the works, or of the reservoirs, the payment of the interest of 
any loan made for their construction, or for the creation of a sinking 
fund for the liquidation of the debt; and the amount authorized to be 
levied and assessed for water-works purposes, shall be applied by the 
council to the creation of a sinking fund for the payment of the in¬ 
debtedness incurred for the construction and extension of water-works,, 
and for no other purpose whatever. 

Sec. 340. Monthly reports> and weekly deposits. Said trustees 
shall make monthly reports to the council of the receipts and dis¬ 
bursements of money belonging to the water-works, and an annual re¬ 
port of the condition of the same, which report the council may cause 
to be published in some newspaper of general circulation in the corpo¬ 
ration ; and all money collected for water-works purposes they shall 
cause to be deposited weekly, by the collectors thereof, with the treas¬ 
urer of the corporation, and the receipt therefor shall be by such col¬ 
lectors deposited with said trustees or their authorized agent. 

Sec. 341. Money to he kept as a distinct fund. All money so 
deposited shall be kept a separate and distinct fund, subject to the or¬ 
der of said trustees; and all orders drawn by said trustees on the 
treasurer of the corporation, shall be signed by one of the trustees* 
and countersigned by the clerk of the water-works. 

Sec. 342. Trustees to make contracts, etc. The said trustees 
shall be authorized to make contracts for the building of machinery* 
water-works buildings, reservoirs, and the enlargement and repair 
thereof, and the manufacture and laying down of pipe, and for all 
other necessary purposes to the full and efficient management and con¬ 
struction of water-works. 

Sec. 343. Annual investigation. The council of any corporation* 
in which water-works are or may be situated, or in progress of con¬ 
struction, shall be authorized to appoint a committee for the investi¬ 
gation of all books and papers, together with all matters pertaining 
to the management of the water-works, at least once a year, and oft- 
ener if necessary by reason of any neglect of duty, or malfeasance on 
the part of any officer of the works; and any officer of the works* 


[87] 

found by said committee so offending, shall be liable to removal from 
office by the council. 

Sec. 344. No charge for water to extinguish fires, etc. No 
charge shall be made by the trustees of water-works for supplying 
water for the extinguishing of fires, or cleaning of fire apparatus, or 
the cleaning of market-houses, or for the use of any of the public build¬ 
ings belonging to the corporation. 

Sec. 345. Protection of attachments , etc. All attachments of 
whatever nature made to the water-pipes, or other fixtures belonging 
to the water-works, and intended for public use, shall be subject to 
the same supervision, rules and regulations, as are made for the pro¬ 
tection of water-works against abuse, destruction, and inordinate or 
unnecessary use or waste of water, or the trustees may make general 
or special rules and regulations for such purpose. 

Sec. 346. Pules as to contracts. Said trustees, before entering 
into any contract for work to be done,, the estimated cost of which 
shall exceed five hundred dollars, shall cause at least two weeks no¬ 
tice to be given, in one or more daily newspapers of general circulation 
in the corporation, that proposals will be received by said trustees, 
for the performing of the work specified in said notice ; and the trus¬ 
tees shall contract with the lowest bidder, if, in their opinion, said 
lowest bidder can be depended on to do the work with ability, prompt¬ 
ness and fidelity, and if such be not the case, said trustees may give 
the contract to the next lowest bidder, or decline to contract, and ad¬ 
vertise again. 

Sec. 347. Contractors must give bond, etc. Said trustees shall 
require bond to be given, with good and sufficient security, for the 
faithful performance of the work; but no member of said board of 
trustees shall be such security; nor shall any trustee be a contractor, 
or in any-wise, either directly or indirectly, interested in any such 
work to be contracted for; provided, that in case of emergency, the 
council may, by a vote of two-thirds of all the members elected, au¬ 
thorize said trustees to enter into such contracts without adver¬ 
tising. 

Sec. 348. Extension of aqueducts , etc., beyond corporation lim¬ 
its. The council of any corporation owning water-works, may, on the 
written request of any number of citizens living outside of the limits 
thereof, extend, construct, lay down, and maintain aqueducts and wa¬ 
ter-pipes to any distance outside of the corporation limits, not exceed¬ 
ing three miles, and for this purpose shall have the right to make use 
of such of the public streets, roads, alleys and public grounds, as shall 
be necessary therefor. 

Sec. 349. Construction and regulation thereof. Such aqueducts 
and pipes shall be so constructed and laid as not to interfere unneces¬ 
sarily with the use of such streets, roads, alleys, and public grounds, 
as public highways and public grounds; and the corporation so ex¬ 
tending and establishing any part of its water-works outside of its 
limits, shall have the same power and jurisdiction to prevent or pun¬ 
ish any pollution of, or injury to the water so conveyed, or any injury 


[ 88 ] 

to the works, or any portion thereof, as they may have within the 
limits of the corporation. 

Sec. 350. Water-works in contiguous cities or villages. Any 
city or incorporated village owning water-works, whose territory is 
contiguous to that of another city or incorporated village, may, with 
the assent of such other city or incorporated village, establish and 
maintain such portion of its water-works as it shall deem advisable, 
within the limits of such other city or incorporated village, and shall 
have the right to make use of such of the public streets, alleys and 
public grounds of such other city or incorporated village as shall he 
necessary therefor, for the purpose of constructing, laying down, and 
maintaining all such aqueducts and water-pipes as shall he required 
in connection with such water-works, for the conveyance of water 
along and across such streets, alleys and public grounds. 1 

Sec. 851. Construction and regulation thereof. Such aqueducts 
and pipes shall he so constructed and laid as not to interfere unnecessa¬ 
rily with the use of such streets, alleys and public grounds, as public 
highways and public grounds ; and the city or incorporated village so 
establishing any part of its water-works within the limits of such other 
city or incorporated village, shall have jurisdiction to prevent or pun¬ 
ish any pollution of, or injury to the water so conveyed, or of the stream 
or source from which the same shall be obtained, or any injury to any 
portion of said water-works so located within the limits of such other 
city or incorporated village. 

Sec. 352. Contracts to supply contiguous cities or villages. Any 
city or incorporated village which shall have established, or shall be 
about to establish water-works, is hereby authorized to enter into a 
contract with any contiguous city or incorporated village, for the sup¬ 
ply of the latter with water, upon such terms as shall be mutually 
agreed upon by the board of trustees of water-works of the respective 
cities, or of the city and incorporated village, or of the incorporated 
villages. 

Sec. 353. Cost thereof, how raised. The amount to be paid for 
such supply, shall be raised by such city or incorporated village, in 
the manner provided for the payment of the expense of conducting 
and managing water-works constructed wdiolly by a city or incorpo¬ 
rated village ; and the amount so received by the city or incorporated 

i The city of Cincinnati made a contract with the city of Covington to 
supply it with water from the Cincinnati water-works. Plaintiffs—citizens 
of Cincinnati, tax-payers, and water consumers—asked for an injunction to 
restrain the performance of the contract. Held, per Force, J., that the act 
of 1854 , authorizing any city having water-works to enter into a contract 
with any contiguous city, or incorporated village, for the supply of the 
latter with water upon such terms as shall be mutually agreed upon by the 
boards of trustees of water-works of the respective cities, etc., was descrip¬ 
tive of and applied only to municipal corporations within the State of Ohio; 
and that, neither in the general authority to establish and manage water¬ 
works, nor in the inherent powers of a municipal corporation, was the 
power to be found authorizing the city of Cincinnati to make the contract. 
Injunction allowed. Kleiner Kro.’s v. City and Trustees of Water-works . 
Ham. Com. Pleas. MS. 



[89] 

village furnishing such supply, shall he applied to the payment of the 
interest on the sum borrowed for the construction of such water-works, 
or to defray the expense of their management, as the board of trustees 
for water-works shall direct. 

Sec. 354. Works to be joint property , etc. Upon the annexation 
of one municipal corporation to another municipal corporation, the wa¬ 
ter-works theretofore constructed by either corporation, shall thereby 
become the joint property of the united corporation, and shall there¬ 
after he managed by the board of trustees of the corporation to which 
such annexation shall have been made. 

Sec. 355. Termination of contract upon annexation. Any con¬ 
tract entered into, by one municipal corporation, for the supply of 
water to the other, as above provided, shall be terminated by such 
annexation; and so much of the debt incurred by either, in the con¬ 
struction of water-works, as remains unpaid, shall thereafter be a 
charge upon the united corporation, to the same extent that the sep¬ 
arate debt of either, incurred as aforesaid, was, before such union, a 
charge upon the corporation which constructed the same. 

Sec. 356. Tax to be levied for payment of interest. For the pur¬ 
pose of paying the interest on the money borrowed for the erection 
and completion of water-works, during the erection and completion 
thereof, and before they shall have been. put in operation, a tax of 
sufficient amount shall be assessed and collected each and every year, 
in the usual manner of levying and collecting taxes in the corporation, 
upon all the taxable property thereof. 

Sec. 357. Payment of interest on loans. For the purpose of 
paying the interest on any loan which any city or incorporated vil¬ 
lage may have heretofore made, or may hereafter make, for the erec¬ 
tion or extension of water-works, and after they shall have been put in 
operation, and for the building of machinery, a tax of sufficient 
amount may be assessed and collected by the council in each and 
every year, in such manner as the council may deem most equitable 
and proper, as may be directed by ordinance, upon all the taxable 
property adjoining, abutting to, or bounding upon any street, lane, 
alley, public ground, square, block or premises through which water- 
pipe has been laid. 

Sec. 358. Tax to be a lien upon property. The said tax, when 
levied and assessed, shall be a lien upon the property upon which the 
same is levied, and a charge against the owners thereof, and shall be 
certified to the auditor of the county, and be placed upon the county 
duplicate in a separate column thereof, and be collected as other taxes, 
and the same shall be paid to and be under the control of the trus¬ 
tees of the water-works. 

Sec. 359. Laying of water-pipes in highways. The council may 
prescribe, by ordinance, for the laying down of water-pipes in all 
highways about to be paved, macadamized, or otherwise permanently 
improved, and for the assessment of the cost and expense thereof 
upon the lots or parcels of land adjoining or abutting upon the high¬ 
ways in which the same are laid; but in no case, excepting as a sani- 


[ 90 ] 

tary measure, shall the council require any house connections to be 
built further from the main pipe than the outer line of the curbstone. 

Sec. 360. Extent of jurisdiction. The jurisdiction of any corpo¬ 
ration owning water-works, to prevent or punish any pollution of the 
water, shall extend five miles beyond the corporation limits. 


CHAPTER XXVI. 

PUBLIC CEMETERIES AND BURIAL-GROUNDS. 1 


Section. 

361. Cemeteries to be provided. 

362. Title to be vested in corporation. 

363. Board of trustees to be elected. 

364. Their term of office, etc. 

365. Vacancies, how filled. 

366. Duties of trustees. 

367. Their powers. 

368. May institute suits, etc. 

369. Shall make by-laws, etc. 

370. Shall fix price of lots and terms of pay¬ 

ment. 

371. Price of lots limited. 

372. Sale of lots, etc. 

373. Clerk, and quarterly report. 

374. Annual report to council. 

375. Statement as to funds, etc. 

376. Enlargement of grounds. 

377. Union of cities, etc., for cemetery pur 

poses. 

378. How appropriations shall be made. 

379. Titles, how vested. 

380. Expenses, etc., to be pro rata. 


Section. 

381. Control and management. 

382. Power to enforce ordinances, etc. 

383. Discrimination forbidden. 

384. Joint meeting of council and trustees. 

385. Joint meeting to make rules, etc. 

386. Vote, and record thereof. 

387. Public burial-grounds may be appropri¬ 

ated. 

388. Purchase of lands, improvements, etc. 

389. Rights and titles inviolate. 

390. Adjoining townships may be admitted 

to participation, etc. 

391. Clerk shall record plat of grounds, etc. 

392. Power of council over burial-grounds, 

etc. 

393. Burials may be prohibited within corpo¬ 

ration limits. 

394. Power limited as to villages. 

395. Bond may be required of disbursing 

trustee. 

396. Applicability to existing cemeteries. 


Sec. 361. Cemeteries to be provided. The council shall have 
power to provide, without the limits of the corporation, places for the 
interment of the dead. 

Sec. 362. Title to be vested in corporation. The title to, and 
right of possession of all public grave-yards and burial-grounds lo¬ 
cated within any city or incorporated village, which have been set 
apart and dedicated as public grave-yards or burial-grounds, and 
grounds which have been used as such by the public but not dedicated, 
except such as may be owned or under the care of any religious or be¬ 
nevolent society, or any incorporated company or association, shall be 
and the same are hereby vested in the corporation where such public 
grave-yard or public burial-ground is located. 

Sec. 363. Board of trustees to be elected. The qualified electors 


i Act of 1852, § 23, as amended March 31, 1850 (4 Curwen, ch. 1987); 
Act of April 3, 1867 (64 O. L. 102); March 8,1865 (62 O. L. 38); April 8, 
1865 (62 O. L. 101); March 29,1867 (64 O. L. 70); April 5, 1867 (64 O. L. 
110); April 16,1867 (64 O. L. 203); March 20, 1868 (65 O. L. 32); April 3, 
1868 (65 O. L. 52); May 16, 1868 (65 O. L. 212, 213); April 16,1867 (64 O. L. 
244); March 17,1860 (4 Curwen, ch. 2095,2096.) 

Burial-ground lots in cities are subject to assessment for street improve¬ 
ment—the supreme court having decided that an assessment for such pur¬ 
pose is not within the purview of that clause of the constitution exempt¬ 
ing them from taxation. Collins, J., in Reiner v. Gest. Ham. Com. Pleas. 
MS. 




[91] 

of any city or incorporated village, in which there shall he such 
grounds, or which shall now or may hereafter, by purchase or other¬ 
wise, own a public cemetery or burial-ground, shall elect, at the an¬ 
nual election for corporation officers, a board of three trustees, each of 
whom shall be qualified freehold electors of the corporation, who shall 
be known as the Trustees of Cemeteries. 

Sec. 364. Their term of office, etc. Such trustees shall serve 
without compensation, and they shall hold their office for three years, 
and until their successors are elected and qualified, except that at the 
first election under this act, one of said trustees shall be elected for 
one year, one for two years, and one for three years, and thereafter one 
shall be elected annually, and a majority shall constitute a quorum. 

Sec. 365. Vacancies, how filled. All vacancies which may occur 
in said board, shall be filled by appointment of the council, and the 
person so appointed shall hold his office until the next regular elec¬ 
tion ; and the council shall have power to remove any trustee for 
inattention to his duties, want of proper judgment, skill or taste for 
the due discharge of the duties required of him, or other good cause. 

Sec. 366. Duties of trustees. Said trustees shall take possession 
and charge, and have the entire management, control and regulation 
of all public grave-yards, burial-grounds and cemeteries located in or 
belonging to the corporation, subject to its ordinances, and they shall 
direct, whenever they may deem it necessary, the laying out of such 
grounds and cemeteries, into lots, avenues, walks and paths, or other 
subdivisions, which lots shall be numbered, and the avenues named, 
and a plat thereof made so as to exhibit a fair and distinct outline of 
the grounds ; and the same shall be kept in the office of the clerk of 
the corporation for the use of the public. 

Sec. 367. Their powers. Said trustees shall have power to direct 
all the improvements and embellishments of the grounds and lots, and 
shall protect and preserve the same, and to appoint, subject to the ap¬ 
proval of the counoil, all necessary superintendents, employes and 
agents, and determine their term of office and the amount of their com¬ 
pensation. 

Sec. 368. May institute suits, etc. Said trustees are authorized 
and required, when necessary, to institute suits in the name of the 
corporation, to recover the possession of all such grounds, remove 
trespassers therefrom and recover damages for injuries thereto, or to 
any tombstone or monument therein, and they shall see that all laws 
and ordinances passed for the protection of public burial-grounds and 
cemeteries, and the burial of the dead, are enforced. 

Sec. 369. Shall make by-laws , etc. Said trustees shall make all 
such by-laws and regulations, not inconsistent with the ordinances of 
the corporation and the constitution and laws of the state, as they 
shall deem useful and necessary for the management and protection of 
all such burial-grounds and cemeteries, and the burial of the dead 
therein ; and such by-laws and regulations shall have the same valid¬ 
ity as the ordinances of the corporation, and they shall perform all 


[ 92 ] 

such other duties pertaining to their office as the council of the corpo¬ 
ration may, by ordinance, prescribe. 

Sec. 370. Shall fix price of lots and terms of payment. Said 
trustees shall determine the size and price of lots, and terms of pay¬ 
ment therefor, and shall give to each purchaser a receipt, showing the 
amount paid and a pertinent description of the lot or lots sold; and 
upon producing such receipt to the proper officer, such purchaser shall 
he entitled to a deed for the lot or lots described therein. 

Sec. 371. Price of lots limited. No more shall be charged for 
lots than shall be necessary to keep in order and embellish the grounds ; 
and provision shall be made for the interment in such cemetery, of all 
persons buried at the expense of the corporation. 

Sec. 372. Sale of lots, etc. Said trustees shall have the entire 
charge and control of the receipts arising from the sale of lots, and of 
the laying-off and embellishing the grounds; and they may appoint 
one of their number to sell lots, receive payment therefor, direct the 
improvements, and make the expenditures under such rules and or¬ 
ders as they shall prescribe, but notice of such appointment shall, 
upon being made, be communicated to the council. 

Sec. 373. Clerk, and quarterly report. Said trustees shall ap¬ 
point a clerk, and keep an accurate minute of all their proceedings, and 
report quarterly to the council all the moneys received and disbursed 
by them as such trustees. 

Sec. 374. Annual report to council. Said trustees shall, annually, 
on the first Monday of April, or as soon thereafter as may be practi¬ 
cable, report in writing to the council, the number of lots sold, to 
whom sold, and the amount received therefor during the year preced¬ 
ing said date, and a detailed statement of the expenditures during the 
same period, showing the time and purpose of each payment, and to 
whom made. 

Sec. 375. Statement as to funds, etc. Such report shall also con¬ 
tain a pertinent statement whether the funds, if any on hand, are in¬ 
vested, and the character of the securities therefor, and such other mat¬ 
ters as the trustees may deem expedient or the council may require. 

Sec. 376. Enlargement of grounds. Whenever, in their judg¬ 
ment, an enlargement of any burial or cemetery grounds has become 
necessary, or grounds for additional cemeteries should be provided, the 
trustees shall report the fact to the council, and recommend such ac¬ 
tion as they may deem most expedient. 

Sec. 377. Union of cities, etc., for cemetery purposes. It shall 
be lawful for the council of any city or incorporated village and the 
trustees of any township adjacent to or in which such city or incor¬ 
porated village is situated, to unite in the establishment of a ceme¬ 
tery by the purchase or appropriation of land therefor, not exceeding 
in extent one hundred acres, to be paid for as hereinafter provided. 

Sec. 378. IIow appropriations shall he made. When any ap¬ 
propriation of land for such purpose shall be necessary, such appro¬ 
priation shall be made by the corporation for itself and the township 
interested therein, and the proceedings therefor shall be the same as 


[ 93 ] 

required by this act where the appropriation is to he made for the use 
of the corporation alone. 

Sec. 379. Titles , how vested . The title to such cemetery grounds, 
whether by purchase or otherwise, shall vest in and be held by such 
corporation in trust for the use of the inhabitants of the corporation 
and township in common, and provision shall be made for the inter¬ 
ment in such cemetery of all persons buried at the expense of the 
corporation or the township. 

Sec. 880. Expenses , etc., to be pro rata. The expense of such 
purchase, or of the proceedings in case of appropriation, and the dam¬ 
ages awarded, or both, shall be borne by the corporation and township 
in proportion to the property of each on the duplicate for taxation, 
and the amount of bonds issued by each in any case, for such cemetery 
purposes, shall be in the same proportion, and the percentage of taxa¬ 
tion for all such cemetery purposes shall be the same in the corpora¬ 
tion and the township. 

Sec. 381. Control and management. The cemetery so owned in 
common by the corporation and township, shall be under the control 
and management of the trustees of cemeteries, and their authority over 
the same and their duties in relation thereto, shall be the same as 
where the cemetery is the exclusive property of the corporation. 

Sec. 382. Power to enforce ordinances, etc. The council of any 
city or incorporated village owning a cemetery in common with any 
township as aforesaid, shall have full power and authority to pass and 
enforce all ordinances necessary to carry into effect the provisions 
herein contained, and such as may be deemed necessary for the pres¬ 
ervation and regulation of such cemetery and the protection thereof, 
and for the punishment of any person or persons violating the ordi¬ 
nances, rules and regulations relating to such cemetery; and the mayor 
and police officers of such corporation shall have full and complete ju¬ 
risdiction and authority to enforce all such ordinances, rules and reg¬ 
ulations, as if such cemetery grounds were located within or owned 
exclusively by the corporation. 

Sec. 383. Discrimination forbidden. No distinction or discrim¬ 
ination of any kind shall be made by the trustees of such cemetery 
owned in common, in favor of the corporation and against the town¬ 
ship, or in favor of the township and against the corporation, but the 
affairs of the said cemetery shall in all respects be managed as though 
the same were owned and governed in the interests of the corporation 
or the township alone. 

Sec. 384. Joint meeting of council and trustees. The council 
of the corporation and the trustees of the township shall have a joint 
meeting at the council chamber of the corporation, on the day of the 
first regular meeting of the council in the month of May of each year, 
for the purpose of determining the rate of tax to be levied upon the 
taxable property of the corporation and the township for the purposes 
herein required; and upon the passage of a joint resolution by a 
majority of the members of the council and the trustees, fixing the 
rate of taxation, it shall be the duty of the clerk of the corporation to 


[ 94 ] 

certify the said rate to the auditor of the county for assessment and 
collection. 

Sec. 385. Joint meeting to make rules, etc. The trustees of such 
township or the council of such corporation may at any time call a 
joint meeting of the trustees and council, on a reasonable notice given 
by either, for the purpose of making joint rules and regulations for 
the government of such cemetery, or changing the same, and making 
such orders as may be found necessary for the application of the mon¬ 
eys arising from the sale of lots, and from taxes, or otherwise. 

Sec. 386. Votes and record thereof. In all joint meetings each 
member of the council and each of the trustees shall have one vote in 
determining all questions; and the proceedings of all joint meetings 
shall be recorded by the corporation clerk. 

Sec. 387. Public burial-grounds may be appropriated. In the 
establishment of cemeteries as herein provided, any city or incorpo¬ 
rated village and any township may make use of any public burial- 
ground or cemetery ground which may be held by such city, incorpo¬ 
rated village or township, and may make use of any land which such 
city, incorporated village or township may have acquired by dedication, 
gift or devise for burial purposes. 

Sec. 388. Purchase of lands, improvements , etc. The council of 
any city or incorporated village, and the trustees of any township, 
may purchase of any cemetery association incorporated under existing 
laws, the lands, lots, and improvements of such cemetery association 
remaining unsold, for cemetery purposes, and take a conveyance thereof; 
but the purchase money in such cases shall be applied to the payment 
of the legal debts of such association, and to the embellishment and 
preservation of the land purchased, and such other purposes as the 
trustees of the cemetery may direct. 

Sec. 389. Bights and titles inviolate. The rights and titles of 
lot-owners, purchased prior to such sale and conveyance, shall not be 
questioned; and such lot-owners shall continue to hold and occupy 
their lots under such rules and regulations as shall be adopted for the 
government and regulation of such cemetery by the authorities making 
such purchase. 

Sec. 390. Adjoining townships may be admitted to participa¬ 
tion , etc. Any township adjoining one in which a cemetery may be 
established by a municipal corporation and township, may, by consent 
of the trustees of such township and of the council of the corporation, 
be admitted to an equal participation with the inhabitants thereof in 
the rights and privileges in said cemetery, upon such terms as may be 
mutually agreed upon; but the title and control of said cemetery shall 
continue vested in the corporation as above provided. 

Sec. 391. Clerk shall record plat of grounds, etc. It shall be 
the duty of the clerk of the corporation to record, in a book to be 
provided for that purpose, a plat of all grounds for cemetery purposes 
laid out into avenues, walks, paths and lots, and he shall execute to 
the purchasers of lots such conveyance as may be necessary to carry 
into effect the contracts of sale; and such conveyance shall, at the ex- 


[ 95 ] 

pense of the person receiving it, be recorded in a book to be kept for 
that purpose, by the clerk of the corporation. 

Sec. 392. Power of council over burial-grounds , etc. The coun¬ 
cil of any city or incorporated village owning a public burial-ground 
or cemetery, whether within or without the corporation, shall have full 
power to pass all ordinances necessary to carry into effect the provis¬ 
ions herein contained, and to regulate such public burial-grounds and 
cemeteries, the improvement of the same and the burial of the dead 
therein ; to define the tenure and conditions on which lots therein shall 
be held; to protect such public burial-grounds and cemeteries and all 
fixtures thereon; and to provide for the punishment of all violations 
of such ordinances. 

Sec. 393. Burials may be prohibited within corporation limits. 
The council may prohibit the interment of the dead within the cor¬ 
poration limits, and, for the purpose of making such prohibition ef¬ 
fective, may not only impose proper fines and penalties, but shall also 
have power to cause any body, interred contrary thereto, to be taken 
up and buried without the limits of the corporation. 

Sec. 394. Power limited as to villages. Incorporated villages 
shall not have the power to prohibit the interment of the dead, in any 
cemetery in use at the time of the incorporation of such village, except 
in such portions thereof as may not now be used for such interment. 

Sec. 395. Bond may be required of disbursing trustee. The 
council shall have power, in their discretion, to require the trustee who 
may be authorized to receive and disburse the moneys arising from 
the sale of lots, or otherwise, to enter into a bond to the corporation, 
with sufficient sureties, conditioned for the faithful performance of his 
duty as such trustee, and to pay over all moneys by him received, 
which shall be filed in the office of the corporation clerk. 

Sec. 396. Applicability to existing cemeteries. The provisions 
of this chapter relating to the establishment of cemeteries by munici¬ 
pal corporations and township trustees, shall govern cemeteries al¬ 
ready so established, so far as the same may be applicable. 


CHAPTER XXVII. 

PUBLIC GROUNDS AND PARKS. 1 

Section. Section. .... 

397. Appointment of park commissioners. 399. Their powers ana duties. 

398. To serve without compensation, etc. 400. Police jurisdiction over parks, etc. 

Sec. 397. Appointment of park commissioners. Whenever the 
council of any city or incorporated village shall, by resolution, de¬ 
termine to lay out and improve any public grounds or park, it shall 
be the duty of the mayor to appoint, with the consent ot the council, 
three resident freehold electors of the corporation as commissioners for 

i Act of March 3, i860 (4 Curwen, ch. 2068); March 30,1857 (4 Curwen, 
ch. 1702.) 




[ 96 ] 


that purpose, one of whom shall be appointed to serve for one year, 
one for two years, and one for three years, and thereafter one commis¬ 
sioner annually to serve for three years. 

Sec. 398. To serve without compensation , etc. Said commission¬ 
ers shall constitute a board to be called the “Park Commissioners ,” 
and they shall serve without compensation, and in incorporated vil¬ 
lages, whenever the council may deem expedient so to declare by reso¬ 
lution, one or more of the said commissioners may be appointed from 
the members of such council. 

Sec. 399. Their powers and duties. Said commissioners shall 
have power to appoint a superintendent and all other necessary em¬ 
ployes, and fix their compensation, subject to the approval of the coun¬ 
cil, and prescribe their duties, and generally they shall have the same 
powers and perform the same duties, so far as applicable, as are vested 
in and required to be performed by the trustees of cemeteries as pro¬ 
vided in chapter twenty-six. 

Sec. 400. Police jurisdiction over parks , etc. When such park 
or public grounds shall be situated without the limits of the city or 
incorporated village, the council shall have power, and may, by ordi¬ 
nance, extend the police jurisdiction of the corporation owning such 
park or grounds, over the same, in the same manner and to the same 
extent as if situated within the limits of the corporation. 


CHAPTER XXVIII. 


PUBLIC HALLS. 1 


Section. 

401. Councils may erect public halls. 

402. Enlargement, etc., of public halls. 


Section. 

403. Appointment of superintendent, etc. 

404. Council to have control of halls. 


Sec. 401. Councils may erect public halls. The council of any 
city or incorporated village shall have power to erect, enlarge, improve 
and complete any public hall, which shall be used for the public of¬ 
fices of the corporation, and such public and other purposes as the 
council may authorize. 

Sec. 402. Enlargement , etc., of public halls. All the power 
herein conferred on any council, in relation to the erection, enlarge¬ 
ment, improvement and completion of any public hall, shall apply to 
and be conferred on any council in the erection, enlarging, improving 
and completing any addition or additions to any public hall, now 
owned by the corporation, or which may be hereafter erected. 

Sec. 403. Appointment of superintendent, etc. For the complete 
execution of the powers in this chapter granted, the council shall have 
power to appoint a superintendent or architect, or both, and such other 
persons as may be deemed necessary, and to provide for the making 





of all necessary contracts, and prescribe rules and regulations for the 
government of all such employes. 

Sec. 404. Council to have control of halls. Such hall, when com¬ 
pleted, shall be under the control of the council, and the council shall 
have the same power in relation to the preservation and repair thereof 
as in its original construction or improvement. 


CHAPTER XXIX. 

DIVISION INTO WARDS. 1 ‘ 

Section. Section. 

405. Boundaries, etc., of wards to be estab* 408. Boundaries of wards by streets, alleys, 
lished by ordinance. etc. 

400. Publication of notice of ordinance. 409. Election of representatives of new wards. 

407. Wards in annexed territory. 410. Effect of change of wards on members 

of council. 

Sec. 405. Boundaries, etc., of wards to be established by ordi¬ 
nance. Whenever the corporate limits of any city or incorporated 
village shall hereafter be altered, extended or reduced, or the popula¬ 
tion thereof, or of any ward or w r ards thereof, has been or may be so 
increased or diminished as to render, in the opinion of the council, a 
division or redistricting of the corporation into wards, or a change in 
the boundary of any ward or wards necessary, the same may be done 
by ordinance at any regular meeting of the council. 

Sec. 406. Publication of notice of ordinance. Upon such ordi¬ 
nance being introduced, the council shall, by resolution, require the 
clerk to give notice of the pendency of the same, and of the proposed 
change, increase or reduction of boundaries, in some newspaper pub¬ 
lished and of general circulation in the corporation, for the period of 
three consecutive weeks prior to any action being taken thereon. 

Sec. 407. Wards in annexed territory. When territory is an¬ 
nexed to any corporation, or one corporation is annexed to another 
corporation, such territory or corporation so annexed may be organized 
into a new ward or wards, or attached to any existing ward or wards, 
as the council may deem proper. 

Sec. 408. Boundaries of wards bystreets , alleys, etc. All wards 
which may hereafter be established, and all changes in existing wards, 
shall be bounded by streets, alleys, avenues, public grounds, or cor¬ 
poration lines, and be composed of adjacent and compact territory ; and 
the several wards, at the time of redistricting, shall contain as nearly 
an equal number of inhabitants as may be practicable. 

Sec. 409. Election of representatives of new wards. Whenever 
any change in the number of wards or alteration in the boundaries of 
any ward shall be made, or new wards shall be established, there shall 
be no election for members of council or ward officers until the next 
ensuing annual election for corporation officers. 

Sec. 410. Effect of change of wards on members of council. 


i Act of March 21, 1863 (60 O. L. 25); March 19,1868 (65 O. L. 28.) 




[ 98 ] 

Nothing in this chapter contained shall he construed to limit or 
abridge the term of office of any member of the council; and when¬ 
ever it shall so happen that by reason of the alteration of any boun¬ 
dary of any ward or wards, or change in the number of the wards, the 
number or numbers of the ward in which any member or members 
may reside shall be changed, he or they shall be deemed and taken to 
represent that ward in which he or they may, after such change, re¬ 
side during the remainder of his or their term of office. 


CHAPTER XXX. 

STREET RAILROADS. 1 

Section. Section. 

411. Street railroads authorized by ordi- 413. Grade of streets where railroads are 

nance. constructed. 

412. Notice of application for ordinance to 414. Pavements of streets where railroads are 

be published. constructed. 

Sec. 411. Street railroads authorized by ordinance. The council, 
on the written application of any corporation, individual or individu¬ 
als, desiring to construct any street railroad in any city or incorpo- 


i Act of March 27, 1866 (63 O. L. 55); April 17, 1867 (64 O. L. 250.) 

While the employes of a street railroad company are bound to the high¬ 
est degree of care and prudence in the management of the teams attached 
to their cars, with a view to secure the safety of their passengers, a dif¬ 
ferent rule prevails in respect to members of the general public, between 
whom and the company no relation arising out of contract, express or 
implied, exists. As to such persons, the employes of the company are 
only bound to exercise what amounts, under all the circumstances of the 
case, to ordinary care and prudence. Pendleton Street R. R. Co. v. Shires , 
18 O. S.—. 

The 12th section of the Act of 1852, providing for “ the creation and 
regulation of incorporated companies in the state of Ohio,” authorized a 
municipal corporation, in agreeing with a railroad company upon the 
terms and conditions upon which the latter might occupy public grounds, 
to demand and receive compensation for the injury to the general public 
use resulting from such occupation. Cincinnati v. Pendleton , etc., R. R. Co ., 
Superior Court of Cincinnati, General Term, 1862. MS. 

It was no objection that the compensation was provided for by a promise 
on the part of the company to pay according to the amount of business 
transacted, and the extent of their use of the public property. Ib. 

A contract between the parties whereby the defendants, in considera¬ 
tion of the grant of a right to lay rails, run cars and transport passengers 
upon certain streets in Cincinnati, for twenty years, agreed to pay the 
plaintiff one cent for each passenger carried, was valid, lb. 

On the 1st of July, 1859, the city council and the street railroad com¬ 
panies, acting under the 12th section of the general Corporation Act of 
1852, entered into contracts, for the use of certain streets for street rail¬ 
road purposes, by which contracts the companies agreed to sell tickets in 
packages of twenty-five for a dollar; and also to abide by and perform 
the provisions of the ordinance of July 1,1859, and of all the resolutions 
and ordinances thereafter passed by the city council on the subject; and 
the city council, on the 10th of June, 1864, passed an ordinance requiring 
the sale of package tickets on the cars: Held , 




[ 99 ] 

rated village, before the work of constructing sucli road be commenced, 
shall, by ordinance, grant permission therefor, and prescribe the terms 
and conditions upon, and the manner in which such road shall be con- 


1. That the stipulation requiring the companies to sell packages of 
twenty-live tickets for a dollar, was not rendered void, by the fact that it 
had no connection with the care of the streets; nor by the principle that 
it fell within the legislative power of the city council; nor was it void 
upon the ground that the 12th section of the act of 1852, under which it 
was made, did not apply to street railroads. Cincinnati v. Cincinnati 
Street R. R. Co ., Superior Court of Cincinnati, 1866. MS. 

2. That these street railroad companies, organized under the act of 1852, 
were legal corporations, and that these contracts, made under the 12th 
section of the act, between them and the city, “upon the manner, and 
upon the terms and conditions upon which ” the streets lying in their 
respective routes “ should be used,” were valid. Ib. 

3. That if it were otherwise, and the 12th section of said act were held 
not to apply to street railroads, nevertheless said companies, having been 
reorganized under the Street Railroad Act of 1861, and having subse¬ 
quently obtained from the city council several modifications, and enjoyed 
all the benefits of the contracts, had thereby ratified and confirmed, and 
could not now be permitted to repudiate them. Ib. 

4. That the companies are bound, by said contracts, to keep and sell 
package tickets on the cars, agreeably to the ordinances on that subject, 
with such additions only, to the contract price, as the revenue acts of Con¬ 
gress allow. 

5. That the revenue acts of Congress do not relieve the companies from 
their obligation to sell tickets in packages of twenty-five, and that where 
such packages are sold, no fraction of a cent is involved, except the half 
cent, after adding the two and one-half cents to the dollar; and the com¬ 
panies are therefore bound to furnish tickets on their cars in packages of 
twenty-five for not more thau $1.03. Ib. 

6. That the city is entitled to have this obligation enforced by a decree 
for specific performance, and also to a provisional injunction. Ib. 

[The applications for injunctions in the four cases, involving the same 
principles, were heard together, as one application, before Judge Taft, 
assisted by his associates.] 

By an ordinance of the city council, adopted July 1, 1859, it was pro¬ 
vided, among other things, that before any street railroad company should 
commence to run its cars upon any street where it will injuriously affect 
or interfere with the business of any omnibus line, it shall, at the option 
of the owner of such omnibus line, purchase the same, together with all 
property belonging to and used in such omnibus business, at a price to be 
agreed upon between the railroad company and the owner of such omnibus 
line, or if thev can not agree, then the matter to be determined by referees, 
whose valuation is to be final and conclusive: Reid , that while it is compe¬ 
tent for the city council, acting for and on behalf of the municipal corpora¬ 
tion, to designate the terms and conditions upon which street railways may 
occupy the streets, so as to “ provide for the safety, preserve the health, 
promote the prosperity, and improve the morals, order, comfort and con¬ 
venience of such corporations and the inhabitants thereof,” (Municipal 
Act of 1852, § 34); yet that this related to the public at large, and that it 
was ‘‘foreign to the duty and beyond the power” of the city council 
oratuitously to confer upon the omnibus owners a right to compel the 
railroad company to buy out the omnibuses, etc. That such legislation 
would be for private and not for public interests, and so beyond the proper 
scope of municipal legislation. Langdon v. Passenger R. R . Co.. Superior 
Court of Cincinnati, General Term, 1868. MS. 

F. brought suit against N. for paving with Nicholson pavement. N. an¬ 
swered, tlfat in 1859, the Peudleton, etc., Str. R. R. Co., as a part of the con- 




[ 100 ] 

structed and operated, and the streets and avenues which shall he used 
and occupied therefor. 

Sec. 412. Notice of application for ordinance to be published. 
No ordinance for such purpose shall be passed until public notice of 

tract under which it was permitted to occupy the street, agreed with the 
city council to bowlder and keep in repair such street, and by reason of 
that obligation, he (N.) acquiesced in such use of the street; but in 1865, 
the city, for a valuable consideration, released the said railroad company 
from such obligation; whereupon N., by cross-petition, asked that the city 
might be made a party, and adjudged to pay all that was due to F. for 
paving in front of N.’s property. Held , that a demur to such answer and 
cross-petition must be sustained. Foltz v. Lyons, Superior Court of Cin¬ 
cinnati, General Term, 1869. MS. 

Where a railroad company, under the authority of its charter and an 
ordinance of a city, constructs a railroad through a street of the city, 
thereby making embankments of earth, gravel, wood and iron above the 
level of the street, so as to obstruct free and safe passage to and from a lot 
and dwelling-house thereon, adjoining on such street; and where such 
company, under the authority aforesaid, runs steam-engines, locomotives 
and cars along such street and railroad, thereby making noises, and 
shaking, disjointingand disturbing such dwelling-house; and where such 
company under the authority aforesaid, and for the purpose of propelling 
such engines, locomotives and cars, keeps up dangerous fires, thereby 
generating noxious vapor, smoke and filth, near to, and diffusing the 
same in and about, such lot and dwelling-house, so as to render the air 
unwholesome, and to discommode the occupant and owner of such lot and 
dwelling-house: Held, 

1. That such owner and occupant is entitled to damages for any ob¬ 
struction to the street by earth, gravel, timber or rails substantially af¬ 
fecting his use of such street as an appurtenance to his premises. Farrot 
v. Cin., Ham. & Day. 11. R. Co., 10 O. S. 624. 

2. That in respect to the noises, smoke, vapor, or other discomforts aris¬ 
ing from the ordinary use of the railroad by the company, the occupant 
and owner of such lot and dwelling-house has no more right to recover 
damages of the company than any citizen who resides, or may have oc¬ 
casion to pass, so near the street and railroad as to be subjected to like 
discomforts. That a railroad authorized b} r law, and lawfully operated, 
can not be deemed a private nuisance, lb. 

The possibility that a railway maj^ be abused to the public incon¬ 
venience, forms no ground for intercepting the progress of its construc¬ 
tion, and preventing the laying of the track. Though the running of 
cars through a street may somewhat obstruct the free passage of vehicles 
of another kind, yet unless that use by the cars be unreasonable, or exclusive 
of others , it forms no ground for restraint by injunction. Sarqent v. 0. & 
M. R. R. Go., 1 Handy, 52. 

The law presumes that railroads are benefits, unless it otherwise ap¬ 
pears from the circumstances of the case. lb. 

Authority to construct a street railway in the street, and to run cars 
thereon, may be granted to a company incorporated for the purpose, 
when no private right of the adjoining lot-owners is thereby impaired. 
Such private right, being protected by the constitution, can only be taken 
after compensation is made in the manner provided in the constitution 
and laws. Cincinnati <& S. G. A. R. Go. v. Gumminsville, 14 O. S. 523. 

A finding of the court that such right will be impaired, by laying a 
street railway track near the sidewalk in front of the owner's house, is in 
no way qualified by the further fact, also found, that when the interests 
of the company, and of the general traveling public, are also taken into 
the account, the location w r ould be as little injurious as in any other part 
of the highway, lb. 





L1013 


the application therefor has been given by the clerk of the corporation, 
in one or more of the daily papers, if there be such, and if not, then 
in one or more weekly papers published in the corporation, for the pe¬ 
riod of at least three consecutive weeks; and no such grant shall be 
given except to the corporation, individual or individuals that will 
agree to carry passengers upon such proposed railroad at the lowest 
rates of fare. 

Sec. 413. Grade of streets where railroads are constructed. 
Before any street railroad shall be constructed on any street of less 
width than sixty-seven feet, with a roadway of fort}’' feet or under, 
the council shall provide that the erown of the street shall be made a 
nearly flat uniform curve from curb to curb, without ditch gutters, 
and in such manner as to give all wheeled vehicles the full use of the 
roadway up to the face of the curb, after the plan of the streets now 
adopted in the cities of Philadelphia and New York. 

Sec. 414. Pavement of streets where railroads are constructed. 
The council shall have power to require any part or all of the track 
between the rails of any street railroad, constructed within the corpo¬ 
rate limits, to be paved with gravel, bowlders or the Nicholson wooden 
pavement, as may be deemed proper; but without the corporate lim¬ 
its, paving between the rails with bowlders, or the Nicholson wooden 
pavement, shall not be required. 


CHAPTER XXXI. 


GAS COMPANIES. 1 


Section. 

415. Councils may regulate price of gas, etc. 

416. Minimum not to be reduced during term 

agreed upon. 

417. When council may occupy streets for 

gas purposes, etc. 

418. Gas companies may be permitted to oc¬ 

cupy streets. 

419. Forfeiture of charter for neglect to fur¬ 

nish gas, etc. 

420. A temporary failure shall work no for¬ 

feiture. 


Section. 

421. Gas measurers may be appointed. 

422. Exclusive monopoly shall not be allowed 

to gas companies, etc. 

423. Council may erect or purchase gas¬ 

works. 

424. Trustees of gas-works. 

425. To be elected at annual election. 

426. Powers of board of trustees. 

427. Laying of gas-pipes and expense there¬ 

of. 


Sec. 415. Councils may regulate the price of gas , etc. The 
council of any city or incorporated village, in which gas companies or 
gas-light and coke companies may be established, are hereby empow¬ 
ered to regulate from time to time the priee which such gas or gas- 


i Act of March 11, 1853; April 5, 1854; April 7, 1865 (62 O. L. 96); 
January 26, 1867 (64 O. L. 7, 8); April 5,1866 (63 O. L. 144.) 

That an information having been filed by the attorney-general, under 
the Act of May 1, 1852, against the defendant, by its corporate name, 
charging a usurpation of certain corporate franchises, and process having 
been issued and served accordingly, and the defendant having appeared 
and pleaded in a corporate capacity, setting up its charter, etc., it is not 
competent for the state, by replication, to deny the corporate existence of 
the defendant. Where the franchise to be a corporation is intended to 




L102] 


light and coke companies may charge for gas furnished by such com¬ 
panies to the citizens, public grounds and buildings, streets, lanes, 
alleys, avenues, wharves and landing-places ; and said gas-light, or 
gas-light and coke companies shall in no event charge more for any 
gas furnished to such corporation or individuals than the price speci- 


be drawn in question, the proceeding should, under our statutes, he 
against individuals who usurp such franchise. State v. Cincinnati Gas¬ 
light and Colce Company, 18 O. S. —. 

That the city council of the city of Cincinnati could not, without clear 
legislative authority, grant to any person or corporation an exclusive right 
to use the streets and alleys of the city for the purpose of laying down 
pipes for conveying gas to be used in lighting the city, for a term of 
twenty-live years, and thereafter, until the gas-works, pipes, fixings, etc., 
of the grantee should be purchased by the city. To enable the city coun¬ 
cil to grant such an exclusive right, by ordinance in the nature of a con¬ 
tract, the power must be shown to have been expressly granted, or to be 
so far necessary for the proper execution of the powers which are ex¬ 
pressly granted, as to make its existence free from doubt. No such grant 
of powers to the city council is to be found either in the City Charter of 
March 1, 1834 (O. L. L., vol. 32, p. 244), or in the third section of the 
amendatory act of March 16,1839. (O. L. L., vol. 37, p. 297.) 11. 

The right to such use of the public streets of a city is a franchise, and 
must emanate either directly or indirectly from the legislature. II. 

The use of the streets, etc*., for the purpose aforesaid by the defendant 
for twenty-five years prior to the filing of the information, does not bar 
an inquiry into the right of the defendant to their exclusive use. It is not 
inconsistent with the use of unoccupied portions of the same streets by 
others for a like purpose; and the fact that others have not so used the 
streets does not make defendant’s user the exercise of a right to exclude 
others. 11. 

A judgment in favor of the defendant, heretofore rendered by the Dis¬ 
trict Court of Hamilton county, upon an information in the nature of a 
quo warranto , filed by the prosecuting attorney of that county, upon an 
individual relation, is not a bar to a subsequent information of a similar 
character, filed by the attorney-general, in the exercise of the discretion 
given him by the statute. II. 

In the enactment of the 30th, 31st and 32d sections of the act of March 
11. 1853 (S. & C. 1534), which empower city councils to regulate by ordi¬ 
nance. from time to time, the price to be charged by gas-light or gas¬ 
light and coke companies for gas furnished by them, and also in the sup¬ 
plementary act of April 5,1854 (S. & C. 1537), there is no evidence of an 
intention to exempt the defendant from the operation of those statutory 
provisions. And, as the power to alter, modify or repeal defendant’s char¬ 
ter was expressly reserved therein, it was competent for the legislature 
to subject the defendant to such supervision and limitation of prices. Ib. 

An ordinance of the city council, duly passed, pursuant to the power 
given as above, and fixing the maximum price to be charged by defend¬ 
ant for gas, for the period of one year from its date, is obligatory upon 
the defendant; and disobedience to its requirements can not be justified 
by the fact that a decree of the circuit court of the United States, within 
and for the Southern District of Ohio, in a cause in which one S. D. was 
complainant, and the defendant and the city of Cincinnati were defend¬ 
ants, the present defendant was and still is enjoined from obeying such 
ordinances. The state was no party to that suit, and her right to assert 
the validity of the ordinance in a prosecution like the present is unaf¬ 
fected by the decree rendered therein, lb. 

The supplementary act of 1854, before referred to, did not so modify the 
power given to the city council by the act of 1853, to regulate the price of 



[ 103 ] 

fied by ordinance of such council; and such council shall also have 
power to regulate and fix the price which such companies may charge 
for the rent of their meters. 

Sec. 416. Minimum not to be reduced during term agreed upon. 
In case the council fix the minimum price at which they shall require 
any company to furnish gas to the citizens or public buildings, or for 
the purpose of lighting the streets, alleys, avenues, wharves, landing- 
places and public grounds, for a period not exceeding ten years, and 
the company assents thereto by written acceptance filed in the office 
of the clerk of the corporation, it shall not be lawful for the council 
to require said company to furnish gas at a less price during the pe¬ 
riod of time agreed on, not exceeding ten years as aforesaid. 

Sec. 417. When council may occupy streets for gas purposes, 
etc. If such companies shall at any time be required by the council 
to lay pipes and light any street, alley, avenue, wharf, landing-place, 
public ground or building, and shall refuse or neglect for six months 
after being notified by authority of the council to comply with such 
requirement, the council may lay pipes and erect gas-works for the 
lighting of said streets, alleys or public grounds, and all other 
streets, alleys and public grounds not already lighted; and said gas 
companies, or gas-light and coke companies, shall thereafter be pre¬ 
cluded from using or occupying any of the streets, alleys, public 
grounds or buildings not already furnished with gas-pipes of such 
companies, and the council may open any street for the purpose of 
conveying gas as aforesaid. 

Sec. 418. Gas companies may be permitted to occupy streets. 
The council may at any time after the default mentioned in the pre¬ 
ceding section, permit such gas companies to use and occupy the 
streets, allies and public grounds of such corporation for the purpose 

gas, as to make the assent of the defendant necessary in order to give 
validity and effect to an ordinance passed for that purpose. Such assent, 
when properly evidenced, would give to the ordinance the character of a 
contract, and put an end to the power of council to lower the price of gas 
during the time specified in the ordinance. But without such assent the 
power to regulate prices, from time to time, would remain in full force. 
II. 

The intention of the legislature, in empowering city councils to regulate 
the i>rice of gas, was to limit incorporated gas companies to fair and 
reasonable prices for the gas which they might furnish for public or pri¬ 
vate use. This discretionary power of regulation might have been vested 
elsewhere; but wherever vested, it must be exercised in good faith, for 
the purpose for which it was given. If, in the colorable exercise of this 
power, a majority of the members of the council, for a fraudulent pur¬ 
pose, combine to pass an ordinance fixing the price of gas at a rate at 
which they well know it can not be manufactured and sold without loss, 
such an ordinance, so fraudulently passed, would impose no obligations 
on the gas company intended to be affected thereby. And in a proceed¬ 
ing like the present, the good faith of the members of the city council 
who passed the ordinance may be inquired into. II. 

Section 3 of the act of April 6,18GG, “ for the inspection of gas-meters, 
the protection of gas consumers, and the protection and regulation of gas 
companies,” was not in conflict with the second section of the twelfth 
article of the constitution. Cincinnati Gas Light & C. Co. v. State , 18 0. S. —. 



L104] 

of lighting the same, and furnishing gas to the citizens and public 
buildings. 

Sec. 419. Forfeiture of charter for neglect to furnish gas, etc. 
A neglect to furnish gas to the citizens and other consumers of gas, 
or to the corporation, by any company, in accordance with the prices 
fixed and established by the council from time to time, shall forfeit 
all rights of such company under the charter by which it has been es¬ 
tablished ; and the council may proceed to erect, or by ordinance em¬ 
power any person or persons to erect gas-works for the supply of gas 
to such corporation and its citizens ; provided, that nothing in this 
section, or in sections 416 and 417, shall operate to impair or affect 
any contract heretofore made between any municipal corporation and 
any gas-light and coke company. 

Sec. 420. A temporary failure shall work no forfeiture. A tem¬ 
porary failure to furnish gas shall not operate as a forfeiture, unless 
such failure shall be through the neglect or misconduct of such gas¬ 
light or gas-light and coke company. 

Sec. 421. Gas measurers may he appointed. The council of any 
corporation in which gas-works may he constructed, may provide by 
ordinance for the appointment of one or more gas measurers, whose 
duty it shall be to inspect all gas-meters and certify the correctness of 
all bills made against the consumers of gas, and perform such other 
duties as may be prescribed by ordinance. 

Sec. 422. Exclusive monopoly shall not he allowed to gas com¬ 
panies, etc. It shall not be lawful for any council to agree by ordi¬ 
nance, contract or otherwise, with any person or persons, for the con¬ 
struction or extension of gas-works for manufacturing or supplying 
the corporation or its inhabitants with gas, which shall give or con¬ 
tinue to any person or persons making such agreement with the council, 
the exclusive privilege of using the streets, lanes, commons, or alleys, 
for the purpose of conveying gas to the corporation or the citizens 
thereof, or which shall deprive the council of the right to designate 
the kind of meter to be used for the correct measurement of the gas 
furnished under such agreement and to provide for inspecting and reg¬ 
ulating the same, or which shall not specify the exact quality of the 
gas to be furnished, and reserve to the council the right to enforce an 
exact compliance with such specification, under such rules as the coun¬ 
cil may prescribe; nor shall the council make any such agreement 
which shall not secure to the council the right to purchase such works, 
and all the appurtenances belonging thereto, at any time within the 
existence of such contract or agreement. 

Sec. 423. Council may erect or purchase gas-works. The coun¬ 
cil of any city or incorporated village shall have power, whenever it 
may be deemed expedient and for the public good, to erect gas-works 
at the expense of the corporation, or to purchase any gas-works al¬ 
ready erected therein. 

Sec. 424. Trustees of gas-works. When such purchase shall 
have been made, said council shall appoint a board of five trustees, 
who shall manage the said gas-works and supply said corporation and 


[105] 

the citizens thereof with gas, until their successors shall he elected 
and qualified, as hereinafter provided. 

Sec. 425. To be elected at annual election . At the annual elec¬ 
tion occurring next after such purchase, the qualified voters of the 
corporation shall elect a board of five trustees, to be known as the 
Trustees of Gas-Works, who shall hold their office for the term of 
five years, except that at the first election one trustee shall be chosen 
for one year, one for two years, one for three years, one for four years, and 
one for five years ; and thereafter one trustee shall be elected annually ; 
and said trustees shall not receive any compensation for their services. 

Sec. 426. Powers of board of trustees. The said hoard shall have 
power to construct gas-works, extend gas-pipes, manufacture and sell 
gas and coke, collect gas bills and other moneys due for gas, coke, or 
other material sold by them, and disburse the same ; to manage, con¬ 
duct and control said gas-works ; to prescribe by by-laws the price of 
gas and coke, under such rules and regulations as, by ordinance, the 
council may prescribe, and the manner of using gas; and, to carry 
into effect the provisions of this section, shall also have power to pur¬ 
chase material, employ laborers, appoint officers, purchase or lease the 
necessary real estate, and erect buildings thereon; and they shall be 
required to report to the council as often as said council may deem 
proper. 

Sec. 427. Laying of gas-pipes, and expense thereof. The coun¬ 
cil may prescribe, by ordinance, for the laying down of gas-pipes in 
all highways about to be paved, macadamized, or otherwise perma¬ 
nently improved, and for the assessment of the cost and expense 
thereof upon the lots or parcels of land adjoining or abutting upon the 
highways in which the same are laid; but in no case, excepting as a 
sanitary measure, shall the council require any house connections to 
be built further from the main pipe than the outer line of the curb¬ 
stone. 


CHAPTER XXXII. 

LIGHTING BRIDGES AND RAILWAYS. 1 
Section. Section. 

428. Council may provide for lighting bridges. .432. When council may cause lighting to be 

429. Ordinance for that purpose. done. 

430. Character of the ordinance. 433. Expense to be a lien upon bridge. 

431. Notice of requirement to light bridge to 434. How lien may be enforced. 

be given. 

Sec. 428. Council may provide for lighting bridges. The coun¬ 
cil of any city or incorporated village may provide for lighting any 
bridge located in whole or in part in the corporation, owned by any 
individual, company, association or corporation, and also for lighting 
any portion of any railway within the same. 

Sec. 429. Ordinance for that purpose. Whenever it shall be 
deemed necessary by the council of any city or incorporated village to 


i Act of 1852, $ 26, March 9, 1866; 63 O. L. 36. 




[ 106 ] 

have such bridge or railway lighted, the council shall pass an ordi¬ 
nance for that purpose, requiring the individual, company, association 
or corporation owning the same, to light such bridge or railway within 
a specified time. 

Sec. 430. Character of the ordinance. The ordinance shall spec¬ 
ify the manner in which such bridge or railway shall be lighted, and 
the number and style of lamp-posts and lights and fixtures, and the 
time such lights shall be kept burning in each twenty-four hours. 

Sec. 431. Notice of requirement to light bridge to be given. 
Notice of such requirement to light any bridge or railway, shall be 
given at least twenty days before any penalty or charge shall be im¬ 
posed for default. Such notice may be given by delivering to any 
owner, or part owner, or any person having possession, charge or 
management of such bridge or railway, a written or printed copy of 
the ordinance. 

Sec. 432. When council may cause lighting to be done. Should 
the owner or owners of such bridge or railway neglect or fail to do 
said lighting, in conformity with the provisions of such ordinance, 
for twenty days after notice, as aforesaid, the council may immediately 
proceed to cause such lighting to be done at the expense of the owner 
or owners of such bridge or railway. 

Sec. 433. Expense to be a lien upon bridge. The council may 
direct the manner in which the expense of such lighting shall be as¬ 
sessed ; and when assessed the amount shall be due and payable, and 
shall be a lien on such bridge and the land on which the same is 
built, or upon the real estate of the railway company, as the case may 
be. 

Sec. 434. How lien may be enforced. Such charge may be col¬ 
lected, or the lien enforced, in the manner pointed out in the chapter 
providing for the assessment of damages and expenses for making 
public improvements. 


CHAPTER XXXIII. 

SPRINKLING STREETS. 1 
Section. _ Section. 

435. When council may order sprinkling of 437. Assessment a lien on lands charged. 

streets. 438. Expense of collecting to be added to as- 

436. Assessment for expense of sprinkling. sessment. 

Sec. 435. When council may order sprinkling of streets. On 
written petition of not less than one-half the owners of feet front of 
the land fronting on any street, or any specified part thereof, the coun¬ 
cil of any city or incorporated village may order such street, or spec¬ 
ified part thereof, to be sprinkled with water, at such time or times as 
the council may deem proper. 

Sec. 436. Assessment for expense of sprinkling. To pay the ex¬ 
pense of such sprinkling, they may make assessments on the lands abut- 


i Act of April 6,1866; 63 0. L. 186. 






[ 107 ] 

ting on such street, or specified part thereof, either on the valuation 
thereof, as listed for taxation, or by the foot front, and such assess¬ 
ments may he enforced by suit against the owner or occupant of such 
land, or part thereof, or certified to the county auditor, and by him 
placed on the county duplicate, and collected by the county treasurer 
as other taxes are or may be collected; provided, that this section 
shall not apply to premises held and used by any religious society ex¬ 
clusively as a place for public worship, unless such society shall have 
joined in the petition mentioned in the last preceding section. 

Sec. 487. Assessment a lien on lands charged. All such assess¬ 
ments shall be a lien on the lands charged, from the time the council 
determine the amount assessed against each parcel of land. 

Sec. 488. Expense of collecting to be added to assessment. In 
placing any such assessment on the duplicate, the county auditor is 
hereby authorized and required to add to each assessment such addi¬ 
tional per centum as he may deem necessary to defray the expenses of 
collecting the same. 


CHAPTER XXXIV. 


CONTROL OP STREETS, BRIDGES AND VEHICLES. 1 


Section. Section, 

439. Council to have control of streets, pub- 441. Council may prescribe width of tires, fix 

lie grounds, etc. rates of transportation, etc. 

440. Acceptance of dedication of streets by 

council. t 

Sec. 439. Council to have control of streets , public grounds , 
etc. The council shall have the care, supervision and control of all 
public highways, bridges, streets, avenues, alleys, sidewalks and pub¬ 
lic grounds within the corporation, and shall cause the same to be 
kept open and in repair, and free from nuisance. 


i Act of 1852, § 63, as amended March 18,1859; 4 Curwen, ch. 1956. 

The extension of the city limits, so as to include a public county road, 
vests thereafter the exclusive control of such road in the city authorities. 
Ridenour v. Safin, 1 Handy, 464-479. 

Although the manner of the dedication, and the principles and rules of 
property applicable to public highways and public squares or commons, 
in cities and villages, may rest upon the same ground, yet the use and 
purpose of each is different and clearly distinguished from the other. 
Langley v. Gallipolis , 2 O. S. 107. 

The easement of a public highway comprehends the rights of all indi¬ 
viduals in the community, whether upon foot, on horseback, or with any 
kind of vehicle, to pass and repass, together with the right of the public 
to do all the acts necessary to improve it and keep it in repair. But the 
use or beneficial purpose of a public common or square, in a city or vil¬ 
lage, where no special limitation or use is prescribed by the dedication, 
is such, that it may be improved and ornamented for recreation and 
health, or for the public buildings, or as a place for the transaction of 
public business of the people of the city or village; or both for the pur¬ 
poses of pleasure and business, at the discretion of the municipal authori¬ 
ties. Ib. 

The dedication of La Place ” in the village of Gallipolis, subject to the 




[ 108 ] 

Sec. 440. Acceptance of dedication of streets by council. No 
street or alley, which has been or may he dedicated to public use by 
the proprietor of ground in any corporation, shall be deemed a public 
street or alley, or to he under the care or control of the council, unless 

single restriction, that it should not be obstructed on the bank of the Ohio 
river by any kind of public buildings, was for the usual and ordinary 
purposes of a public square, and as such, subject to the control of the pub¬ 
lic authorities of the people of the village. Ib. 

The long-continued use of this ground as an uninclosed public com¬ 
mon, could lay no foundation for any presumption against the right of 
the village to improve the ground, and use it in any other manner deemed 
more advantageous and beneficial to the public, within the terms of the 
dedication. Ib. 

The provision in the act incorporating the town, which, among other 
things, confers the power “to regulate, improve, and keep open, unob¬ 
structed and in repair, the landings, commons, streets, etc., within the 
corporation,” has reference to the appropriate use and object to which each 
was dedicated, requiring each to remain open and unobstructed, so far as 
necessary to accomplish the appropriate object for which it was designed, 
and no further. Ib. 

The right of transit, in the use of the public highways, is subject to 
such incidental, temporary or partial obstructions as manifest necessity 
requires; and among these are the temporary impediments necessarily 
occasioned in the building and repair of houses on lots fronting upon the 
streets of a city, and in the construction of sewers, cellar drains, etc. 
These are not invasions, but qualifications of the right of transit on the 
public highway; and the limitation on them is, that they must not be 
unnecessarily and unreasonably interposed or prolonged. Clark v. Fry , 
8 O. S. 358. 

Such temporary obstructions upon the highway, when guarded with 
due care to prevent danger to the public, and not unnecessarily extended 
or continued, are not nuisances, and do not require a license from the 
municipal authority to legalize them; although suitable regulations by 
the city authorities, requiring such obstructions to be properly guarded, 
and to prevent them from being made in an improper manner, or con¬ 
tinued unreasonably, are usual and highly proper. Ib. 

A city ordinance, imposing, in general terms, a penalty on any person 
for incumbering or obstructing any part of any street, lane or allej’’, etc., 
rationally construed, has manifest reference to nuisances—in other words, 
to incumbrances, or obstructions, which, but for some special license, 
would be unlawful. Ib. 

Under the provisions of the act of May 3,1852, the city council of Colum¬ 
bus had authority to pass an ordinance prohibiting sales at auction, upon 
the streets, alleys, sidewalks, and public grounds of said city. Such 
ordinance was neither clearty unreasonable, nor in restraint of trade. 
White v. Kent , 11 O. S. 550. 

In an action by a contractor with the city against an owner of property, 
to recover an assessment, it appeared that, in 1855, the owners of the prop¬ 
erty through which the street was opened, caused it to be surveyed, 
graded and paved at their own expense, and it had ever afterward been 
used for all the purposes of a street by the public, and a street railway 
had been placed on it by authority of the city council, which also permit¬ 
ted gas and water pipes to be introduced through it. But the city coun¬ 
cil had not, by ordinance, accepted the dedication of the street. The act 
of 1852, § 63, provided that no street or alley should be deemed a public 
street or alley, unless the dedication had been accepted and confirmed by 
ordinance, specially passed for the purpose. Held , per Matthews. J., that 
in view of this legislation, whatever the inconvenience to the public might 
be, there was no doubt of the duty of the court to enforce the law. The 



[ 109 ] 

the dedication shall be accepted and confirmed by an ordinance spe¬ 
cially passed for such purpose. 

Sec. 441. Council may prescribe width of tires, fix rates of 
transportation , etc. The council shall have power to prescribe the 
width of the tires of all wagons, carts, drays, ond other vehicles, used 
in the transportation of persons from one part of the corporation to 


legality of the plaintiff’s contract to perforin the work, and charge the 
cost upon the owner, at the price for which lie sued, depended on the 
question whether the street was a public street , under the care and control 
of the city council; and that fact being conclusively negatived, the plain¬ 
tiff could not recover, and was remitted to his action against the city. 
Goshorn v. Cordeman , Superior Court of Cincinnati. MS. 

But in Bonte v. Wish/, Superior Court of Cincinnati (MS.), the court was 
of opinion that § G3 did not prevent the same result from being reached 
by acts in pais of the city authorities; and that where the council had 
passed an ordinance, recognizing the street by name as one already laid 
out and dedicated by record, and had ordered it to be improved, and other 
acts indicated that it was the intention of the city authorities to accept 
it for the public, and the defendant had notice in fact, but made no objec¬ 
tion, this had the same effect as the act of acceptance mentioned in that 
section. In the opinion of the court delivered by Storer, J., Taft, J., con¬ 
curred; and the remaining Judge dissented, on grounds similar to those 
maintained by Matthews, J. 

The keeping streets in repair is a public duty imposed on the city by 
statute. An action will lie where an individual is specially injured in 
consequence of the non-observance or non-discharge of such duty, or 
through misfeasance or malfeasance in its discharge. Farrelly v. Cincin - 
natU 4 Law Gaz. 33. 

An individual can not enforce a public right, or redress a public injury 
by a suit in his own name. It is only when he suffers some special dam¬ 
age, differing in kind from that which is common to the public, that a 
personal remedy accrues to him. Ib. 

A traveler who is forced to abandon his nearest route, by reason of the 
non-repair of a street, and seeks his destination by a longer and more cir¬ 
cuitous road, whereby he suffers injury to his business, does not sustain 
such special damage as to entitle him to an action against the party 
charged with the duty of keeping the way in repair. Ib. 

If having access to other routes, he voluntarily uses the founderous 
way, he can not recover for a loss thereby incurred, lb. 

The street being intended primarily for travel, not trade, the recovery, 
if any, must be limited to the injury sustained in the use for travel, viz: 
the delay and loss of time, and can not include a loss of the profits of 
trade or transportation, lb. 

A grant by the city council to use the streets of a city, for a purpose 
not incompatible with the public use of the street, in other modes, and 
for other purposes, is not an invasion of private rights, nor a breach of 
public trust. The uses of a street in a city are not necessarily limited to 
the passage and repassage over the same of wagons, carriages, or such 
other modes of conveyance as were in existence at the time of their dedi¬ 
cation. Towns are laid out, and streets therein dedicated, not for the 
present only, but for future time; and that use of a street, which, in one 
age or generation, would be highly appropriate, might in another become 
exceedingly burdensome. Hence it is that power is given to the corpor¬ 
ate authorities to regulate the use of their streets and highways by the 
public. And when such corporate authorities exercise their judicial 
function, within the scope of their powers, the court will not interfere 
with such judgment, unless it be clearly shown to be founded in mistake, 
fraud, or a wanton spirit. It is true that they have no power to abridge 



[ 110 ] 

another, or in the transportation of coal, wood, stone, lumber or iron, 
or other articles in the corporation; to establish stands for hackney- 
coaches, cabs, omnibuses, and enforce the observance and use thereof, 
and to fix the rates and prices for the transportation of persons and 
property in such coaches and other vehicles, from one part of the cor¬ 
poration to another. 


CHAPTER XXXV. 

WHARVES, DOCKS AND HARBOR-MASTERS. * 1 

Section. Section. 

442. Council may establish wharves, docks, 444. Control of shore, appointment of harbor 

etc. masters, etc. 

443. Wharves, etc., must have uniform 445. Copies of surveys to be prima facie evi- 

grade. dence, etc. 

Sec. 442. Council may establish wharves , docks, etc. The coun¬ 
cil of any city or incorporated village shall have power to establish, 
construct, repair, control and regulate landing-places, wharves, docks, 
piers and basins ; to establish, control and regulate the grades of 
wharves and landing-places, and to fix the rates of landing, wharfage 
and dockage, and to use, for the purposes aforesaid, any public land¬ 
ing or any property belonging to or under the control of the corpora¬ 
tion. 2 

Sec. 443. Wharves, etc., must have uniform grade. All wharves 
or landing-places hereafter constructed, shall conform to a uniform 
grade to be established by the council; and it shall be unlawful for 
the owner, lessee or occupant of such property to construct any wharf 
or landing-place without first obtaining the consent of the council, 
and conforming to the established grade. 

Sec. 444. Control of shore, appointment of harbor-masters, etc. 
The council shall have the use and control, for the above purpose, of 

or destroy private rights, nor wantonly or unnecessarily interrupt them; 
nor to create or allow a public nuisance in such streets; but the laying 
of a railroad track through even the great thoroughfares of a city, is not 
such an obstruction of the public streets as necessarily to amount to a 
nuisance; nor necessarily such an abridgment of the rights of adjacent 
property owners as to warrant the court in interfering by injunction. 
To warrant such interference, the use must be unreasonable , or to the ex¬ 
clusion of others. The road will be presumed to be a benefit , unless it other¬ 
wise appear from the special circumstances of the case. Sargent v. 0. & 
M. It. R ., 1 Handy, 62. 

1 Act of 1852, § 64, January 30,1863; 60 O. L. 3. 

2 The territorial limits of the state of Ohio extend on the southeast, at 
least, to the line of ordinary low-water mark, on the northwest side of the 
Ohio river. Booth v. Hubbard , 8 O. S. 243. 

The defendant having been for a long time in the adverse possession of 
a ferry-landing at the foot of Lawrence street in Cincinnati, and receiv¬ 
ing rents therefor, was not liable to the city for such receipts until the 
right of the city to such landing was established by a proper proceeding 
for tliat purpose. Cincinnati v. Walls , 1 0. S. 222. 





[Ill] 

the shore or hank of any lake or river, not the property of individuals, 
to the extent and in any manner that the state can grant such use or 
control; and the power to appoint harbor-masters, wharf-masters, port- 
wardens, and other officers usual or proper for regulation of the naviga¬ 
tion, trade or commerce of the corporation, to define their duties and 
powers, and fix their compensation. 

Sec. 445. Copies of surveys to beprima facie evidence , etc. Copies 
of examinations and surveys, and of the proceedings of any port- 
warden, in the discharge of the duties of his office, certified under 
his hand and seal, shall be prima facie evidence of the matters therein 
stated. 


CHAPTER XXXVI. 
ferries. 

Section 446. License, regulation, etc., of ferries. 

Sec. 446. License, regulation, etc., of ferries. The council of 
any city or incorporated village, shall have the exclusive power to es¬ 
tablish, regulate and license ferries, from such corporation or any land¬ 
ing therein, to the opposite shore, or from one part of the corporation 
to another; and in granting such license, to impose such reasonable 
terms and restrictions, in relation to the keeping of such ferries, and 
the time, manner and rates of the carriage and transportation of per¬ 
sons and property, as may be proper, and to provide for the revocation 
of any such license, and for the punishment, by proper fines and pen¬ 
alties, of the violation of any ordinance prohibiting unlicensed ferries, 
or regulating those established and licensed. 1 


CHAPTER XXXVII. 

LICENSING SHOWS, AUCTIONEERS, ETC. 2 
Section. Section. 

447. Geueral licensing powers of council. 448. Licensing of vehicles, undertakers, etc. 

Sec. 447. General licensing powers of council. The council of any 
city or incorporated village, shall have power to license all exhibitors 
of shows and performances of every kind not prohibited by law ; all 


1 Act of 1852, § 65. 

2 Act of 1852, § 96. 

Under a section of its charter, which provided that “ they shall have 
power to license and regulate all carts, wagons, and drays, and every de¬ 
scription of two and four-wheeled carriages which may be kept in said 
city for hire: Held , that the city council of Cincinnati had power to license 
and regulate draymen, and might require a reasonable sum, by way of 
excise on the special employment. But that the right to license and regu¬ 
late, conferred no taxing power over the draymen. Cincinnati v. Bryson, 
15 0. 625; Mays v. Cincinnati , 1 0. S. 268; Baker v. Cincinnati , 11 O. S. 534. 





L112] 

hawkers and peddlers; all auctioneers of horses and other animals 
in the highways or public grounds of the corporation; all venders of 
gunpowder and other explosives; all taverns and houses of public en¬ 
tertainment ; all hucksters in the public streets or markets; and in 
granting such license, may exact and receive such sum or sums of 
money as the council may think expedient. 

Sec. 448. Licensing of vehicles, undertakers, etc. The council 
shall also have power to license the owners of all vehicles of every de- 


By the 9th section of the Charter of the city of Cincinnati, the city 
council were required to establish and regulate the markets and market 
places for the sale of provisions, etc. An amendatory act prohibited them 
from assessing any charge upon persons bringing provisions to the mar¬ 
kets in wagons, etc., but allowed them to prevent huckstering and fore¬ 
stalling. 

An ordinance of the city defining a huckster to be “any person, not a 
farmer or butcher, who should sell, or offer for sale, any commodity not 
of his own produce or manufacture,” and subjecting such person to a 
penalty, unless he had previously obtained license and paid therefor a 
sum fixed by council, is in conflict with said amendatory act and void. 
Mays v. Cincinnati , 1 O. S. 268. 

It was not in the power of the council, by ordinance, to include per¬ 
sons as hucksters who did not fall within the ordinary meaning of that 
term. Ib. 

The power of taxation upon employment, not being conferred by the 
city charter, can not be exercised as a means for the prevention of huck¬ 
stering. Ib. 

The power of taxation being a sovereign power, can only be exercised 
by the general assembly when, and as conferred, by the constitution; 
and by municipal corporations only when unequivocally delegated to 
them by the legislative body. Ib. 

The sum demanded for license to pursue an employment, when used 
as a means of supplying the public treasury, is a tax on such employ¬ 
ment, and the city council of Cincinnati have no power to levy such a 
tax. Ib. 

Money paid to procure license, when issued upon the petition of the 
party, without objection or protest, is, in the legal sense, a voluntary pay¬ 
ment, and can not be recovered back. Ib. 

The language of the court as to what shall be regarded as an involun¬ 
tary payment, was quoted with approbation in Marietta v. Slocomb , 6 O. S. 
471, but was qualified in Baler v. Cincinnati , 11 O. S. 534, where it was 
held, that a payment may be, under ^circumstances, involuntary, and an 
action be brought to recover back the money, when the position or inter¬ 
ests of the party are such as to require from another the performance of 
a duty enjoined by law, and he is illegally compelled to pay the money to 
induce such performance. 

The 96th section of the act of the general assembly, for the organization 
of cities and incorporated villages, provided that a city council might 
license exhibitions of shows and performances; and “in granting such 
license, may exact and receive such sum or sums of money as the council 
shall think lit and expedient.” Under this provision, and an ordinance 
passed for the purpose, the city council of Cincinnati exacted from the 
plaintiff, as a charge for a license to give theatrical exhibitions for six 
months, $63.50, and also a fee of one dollar for the officer issuing the li¬ 
cense. Held , that the money was not illegally exacted, and that the ex¬ 
action was not in violation of any provision of the constitution of the 
state, restricting the power of taxation vested in the general assembly. 
Baker v. Cincinnati , supra. 



[113] 

scription used for the transportation of persons and property, for hire 
in the corporation, and all undertakers and owners of hearses; hut the 
owner of any such vehicle may he made liable for the breach of any 
ordinance regulating the conduct of the drivers thereof. 


CHAPTER XXXVIII. 

PAWNBROKERS. 1 
Section. Section. 

449. Pawnbrokers must be licensed. 451. Penalty for failure to keep and refusal 

450. They must keep an open record of all to exhibit record, etc. 

their transactions. 

Sec. 449. Pawnbrokers must be licensed. Any person or persons 
carrying on the business of pawnbroker, or of loaning money on jew¬ 
elry or other personal property, in any city or incorporated village 
shall take out a license from the city or incorporated village in which 
he or they do business,.which license shall be fixed by ordinance at a 
cost not to exceed two hundred dollars per annum. 

Sec. 450. They must keep an open record of all their transactions. 
The person or persons so licensed shall keep a correct list and descrip¬ 
tion, in a book for that purpose, of all articles pledged or deposited 
with them, or on which advances of money have been made, or which 
may be purchased by him or them, which list and description shall at 
all times be open to the inspection of the chief of police of the cor¬ 
poration, or of a police officer deputed by him or by the mayor to make 
such inspection; and he or they shall, at all times, when required by 
the police officer or mayor aforesaid, produce and show any article so 
listed and described, which may be in his or their possession; and he 
or they shall also register in such book the name and place of residence 
of the depositor. 

Sec. 451. Penalty for failure to keep and refusal to exhibit record , 
etc. Any person or persons carrying on the business of pawnbroker, 
who shall fail to take out a license therefor, or shall receive and ad¬ 
vance money on any article or property pledged, and shall fail to keep 
a list, description and register as provided above, or who shall refuse 
to submit the same to the inspection of the chief of police or police 
officer deputed as aforesaid, or shall refuse to show the article or prop¬ 
erty when so required, shall, upon conviction thereof, before the police 
court or mayor of the corporation, be fined in any sum not less than 
ten dollars, nor more than one hundred dollars. 


1 Act of March 13,1863; 60 0. L. 16. 


8 




[ 114 ] 


CHAPTER XXXIX. 

FILLING UP LOTS AND REMOVAL OF OFFENSIVE SUBSTANCES. 1 

Section. Section. , , , A , , , 

452. Power of corporation to fill lots, remove 454. In case of refusal or neglect, work to bo 

nuisances, etc. done at expense of owner. 

453. Duty of owners to comply with direc¬ 

tions. 

Sec. 452. Power of corporation to fill lots, remove nuisances, 
etc. All municipal corporations shall have power to cause any lot or 
lots of land within their limits, on which water shall at any time be¬ 
come stagnant, to be filled up, or drained, and to cause all putrid sub¬ 
stances to be removed from any lot or lots; and may, from time to 
time, direct that such lot or lots, be filled up or drained, or that such 
putrid substances be removed by the owner or owners in such reason¬ 
able time, and in such manner, as may be directed by a resolution of 
the council or trustees of the corporation. 

Sec. 453 Duty of owners to comply with directions. It shall be 
the duty of such owner or owners, his, her or their agent or attorney, 
after service of a copy of said resolution, or after a publication of the 
same in some newspaper of general circulation in such corporation for 
four consecutive weeks, to comply with the directions of such resolu¬ 
tion within the time therein specified. 

Sec. 454. In case of refusal or neglect, work to be done at expense 
of owner, etc. In case of a failure or refusal to comply with such resolu¬ 
tion, the work required thereby may be done at the expense of the 
corporation, and the amount of money so expended shall be recovered 


i Act of 1852, § 32. 

A resolution of a city council under § 32, municipal act (2 S. & C. 1506), 
directing lot-owners “ to fill and drain their lots in such manner as shall 
be necessary to remove all stagnant water,” requires, by reasonable con¬ 
struction, not merely the removal of water then on the lots, but the work 
to be so done as to prevent the recurrence of stagnant water from the 
same causes. Poland v. Connelly , 16 O. S. 64. 

The power of creating municipal corporations necessarily implies au¬ 
thority to confer upon them such police powers as may be necessary for 
their internal government, and the resolution referred to, being a reason¬ 
able sanitary measure for preserving the health of the inhabitants, is not 
in conflict with the constitution. II. 

Such resolution must be reasonably certain in its requirements; but 
where the work to be done is clearly defined in general terms, the fact of 
leaving to the owner, who bears the expense, the choice of the means of 
accomplishing the required result, will not render the resolution invalid. 
Ib. 

Where, after default of the lot-owners, the work has been done under 
the authority of the city, it is no objection to the assessment that the ex¬ 
penses have not been paid, nor that the contractor agreed to receive a 
valid assessment in payment. Work done on the credit of the city is, in 
effect, done at its expense. Ib. 

The corporation can not, by devolving the risk and cost of collecting 
the assessment upon the contractor, increase the burden of the owner. 
He can only be assessed for the cash value of the work. Miss v. Kraus , 

16 0. S. 54. 



[ 116 ] 

from the respective owners before a justice of the peace, or other court 
of competent jurisdiction ; and such expense shall, from the time of 
the adoption of such resolution, he a lien on such lot or lots, which 
may be enforced by suit in the court of common pleas of the proper 
county ; and like proceedings may be had as directed in relation to the 
improvement of streets. 


CHAPTER XL. 

MARKETS. 1 


Section. Section. 

455. Power to establish markets, erect mar- 457. No charge to he made for occupancy of 

ket-houses, etc. market-space, etc. 

456. Power to regulate markets and mar- 458. No authority to prevent sale of produce 

keting. at any time or place. 

Sec. 455. Power to establish markets , erect market-houses, etc. 
The council of any city or incorporated village shall have power to 
erect market-houses, establish and regulate markets and market-places, 
for the sale of meats, fish, provisions, vegetables, and other articles 
necessary for the sustenance, convenience and comfort of the inhabi¬ 
tants ; to prescribe the times for opening and closing the same, the 
kind and description of articles which may be sold therein, and the 
stands or places to be occupied by the venders. 

Sec. 456. Power to regulate markets and marketing. The 
council shall also have power to prevent forestalling the markets, to 
prohibit or regulate huckstering in the markets, and to adopt such 
rules and regulations as are necessary to prevent fraud, and to preserve 
order in the markets ; and they may authorize the immediate seizure, 
arrest and removal from any market, of any person or persons violat¬ 
ing its regulations, together with any article in his or their posses¬ 
sion, and the immediate seizure and destruction'of tainted or unsound 
meat or other provisions. 

Sec. 457. No charge to be made for occupancy of market-space , 
etc. No charge or assessment of any kind shall be levied upon any 
farmer or producer of vegetables or provisions bringing the same to 
market, for occupying a place, with or without horses and wagons 
used in bringing such produce to the market, in any of the market- 
spaces, or in the streets contiguous thereto, on market days and even¬ 
ings previous thereto. 

Sec. 458. No authority to prevent sale of produce at any time 
or place. Nothing herein contained shall be so construed as to au¬ 
thorize the council to pass an ordinance for the purpose of assessing or 


i Act of 1852, § 62, as amended May 1, 1854. 

Under a power in the charter of a city to regulate markets, an ordinance 
providing for the collection, each market day, of twenty-five cents, from 
each person occupying a stand in the market-place, is valid, and may be 
enforced by a fine and judgment therefor, to be rendered in a summary 
process before the mayor. Cincinnati v. Buckingham, 10 0. 257. 

Supra , ch. 37 and notes. 




[ 116 ] 

imposing any fine or punishment on any farmer or producer, for sell¬ 
ing at any time within the corporation, any article of provision or 
vegetables in any street or streets, or market-spaces, during market 
hours. 


CHAPTER XLI. 

INSPECTORS OF PROVISIONS AND OTHER ARTICLES. 1 


Section. 

459. Licensing of gaugers, inspectors, etc. 

460. Amount of license to be fixed by ordi¬ 

nance. 

461. License to be for one year ; vacancy. 

462. Extent of license. 

463. Powers, penalties, etc., of inspectors, 
i 464. Inspectors may appoint deputies. 

465. Oath, bond, etc., of inspectors. 

466. Injury from neglect or incapacity to be 

recovered on bond. 

467. Removal of inspector for cause. 


Section. * 

468. Provisions of former act applicable to 

inspectors of oils. 

469. Fees for inspection. 

470. Inspectors of beef, cattle, sheep, hogs, 

etc. 

471. Rules for inspectors to be prescribed by 

ordinance. 

472. Oath of office, bond, etc., of inspectors. 

473. Compensation of inspectors. 

474. Inspectors for other purposes may be 

appointed. 


Sec. 459. Licensing of gaugers, inspectors, etc. The council of 
any city shall have power, whenever deemed necessary, to license one of 
the resident freehold electors of the corporation, possessing the neces¬ 
sary qualifications, to act within and for the corporation, as gauger and 
inspector of domestic and foreign spirits, linseed oil, lard oil, and car¬ 
bon and mineral oils; one inspector of flour, meal and biscuit; one 
inspector of beef, pork, lard and butter; one inspector of pot and 
pearl ashes ; and one inspector of fish, when exposed for sale in bar¬ 
rels or half barrels. 

Sec. 460. Amount of license to be fixed by ordinance. The 
amount of the said license shall be fixed by ordinance, and shall be lim¬ 
ited as follows : To inspect beef, pork, butter and lard, not less than 
fifty nor more than one hundred dollars ; to inspect fish, not less than 
two hundred and fifty nor more than five hundred dollars ; and to in- 


i Act of March 9,1S31 (3 Chase, ch. 892); Act of April 4,1859 (4 Cur- 
wen, eh. 2014); February 11, 1832 (3 Chase, eh. 912); April 16,1867 (64 O. 
L. 211); April 25,1861 (58 O. L. 105); March 11,1S67 (64 O. L. 46); March 
11,1853, § 10. 

Where, under the general law, a city council had power to appoint an 
inspector or sealer of weights and measures, and to enforce, by line, the 
use of weights and measures sealed by such inspector: Meld, that the fine 
assessed for the violation of the ordinance might be collected! either by 
commitment of the person upon whom the fine is imposed, or by fieri fa¬ 
cias. Muddleson v. Lufiin , 6 O. S. 604. 

An*ordinance of the city of Cincinnati, passed in pursuance of the 12th 
section of the act of March 5,1860, “ relating to cities of the first class,” 
etc. (2 S. & C. Stat. 1539), providing for the appointment of an inspector 
and sealer of weights and measures by the city solicitor, from among per¬ 
sons designated by the board of officers of the Chamber of Commerce, is 
a valid ordinance; and when such inspector and sealer is duly appointed 
in accordance with the provisions of such ordinance, and thereupon 
tenders to the city council, for their acceptance, an official bond, in all 
respects unobjectionable, the city council have no discretion left, and 
must accept the bond. Mellows v. Cincinnati , 11 O. S. 544. 




[ 117 ] 

spect foreign and domestic spirits, linseed oil, lard and carbon or min¬ 
eral oils, not less than seventy-five nor more then one hundred dollars. 

Sec. 461. License to be for one year; vacancy. Upon the license 
fee, as required in the preceding section, being paid, the person named 
therein shall be authorized to act as such inspector for the period of 
one year from the date thereof; and in case of vacancy occurring by 
death or otherwise, during the term for which any inspector may have 
been licensed, the council may fill such vacancy by granting a license 
for such sum as may be deemed proper. 

Sec. 462. Extent of license. The said license may authorize the 
inspector or inspectors, or any one or more of them, to inspect any 
one or more of the articles named in the preceding section. 

Sec. 463. Powers, penalties, etc., of inspectors. The inspectors 
shall, within and for said corporation, have the same powers, perform 
the same duties, take the same oaths or affirmations, be governed by 
the same rules, and liable to the same penalties, as are prescribed in 
the act entitled “ an act for the inspection of certain articles therein 
enumerated,’’ passed March ninth, one thousand eight hundred and 
thirty-one, and the act entitled “ an act to amend the act entitled an 
act for the inspection of certain articles therein enumerated,” passed 
February eleventh, one thousand eight hundred and thirty-two. 

Sec. 464. Inspectors may appoint deputies. Said inspectors shall 
have the power of appointing as many deputies to act under them as 
their respective duties in office may require, and for the conduct of the 
deputy, the principal shall be accountable and held liable. 

Sec. 465. Oath, bond, etc., of inspectors. Every person so licensed 
as an inspector, shall, before entering upon the duties of his office, 
take an oath or affirmation, that he will faithfully and impartially ex¬ 
ecute the duties required of him by law, and shall enter into bond 
conditioned for the faithful performance of his duties as such officer, 
with sufficient security, to be approved by the council, as follows: 
For inspectors of beef, pork, butter and lard, the bond shall be three 
thousand dollars ; and for inspectors of fish, foreign and domestic 
spirits, linseed, lard and carbon or mineral oils, one thousand dollars ; 
which bond shall be- filed in the office of the city clerk and made pay¬ 
able to the treasurer of the corporation, and shall be renewed, from 
year to year, as the council may require. 

Sec. 466. Injury from neglect or incapacity to be recovered on 
bond. Any person injured by the misconduct, neglect or incapacity 
of any inspector, may, within one year after the cause of action shall 
have accrued, institute suit on such official bond, but the corporation 
shall not be liable for the costs of such suit; the said bond shall con¬ 
tinue in force until the full amount of the penalty has been recovered, 
and any party obtaining judgment shall have execution as in other 
cases. 

Sec. 467. Removal of inspector for cause. The council shall 
have full power and authority, on complaint and sufficient cause 
shown, to remove from office any inspector; but no inspector shall be 
removed unless upon the vote of two-thirds of all the members elected. 


[ 118 ] 

Sec. 468. Provisions of former act applicable to inspectors of 
oils. The council in the licensing of inspectors of carbon or mineral 
oils, and the inspectors of those oils, shall he governed by the pro¬ 
visions of an act entitled “ an act to provide for the inspection of min¬ 
eral oils for illuminating purposes, and to repeal acts therein named/* 
passed April 16, 1867 ; and the said inspectors shall he liable to the 
penalties in said act now prescribed. 

Sec. 469. Pees for inspection. The said inspectors shall he en¬ 
titled to the following fees for their services, to be paid, on demand, 
hy the party calling upon them, viz : For packing and inspecting 
every barrel of pork or beef, eighteen cents, and for every half barrel, 
thirteen cents; for every package or keg of butter or lard, ten cents ; 
for packing and inspecting every barrel of fish, twenty cents and 
for every half barrel, fifteen cents; and for inspecting and gaug¬ 
ing foreign and domestic spirits, linseed oil, lard and carbon or min¬ 
eral oils, where there are less than twenty packages, ten cents each, 
and more than twenty, the sum of five cents each. 

Sec. 470. Inspectors of beef, cattle, sheep, hogs, etc. The coun¬ 
cil of any city or incorporated village, whenever it may he deemed 
necessary, shall have the further power to appoint one inspector, and, 
if required, one or more assistant inspectors, of beef cattle, sheep, 
hogs, poultry, game, milk, milk cows, fresh meat and fresh fish. 

Sec. 471. Pules for inspectors to be prescribed by ordinance » 
The council shall prescribe, by ordinance, the duties of said inspectors, 
define their powers and fix their term of office; and they are hereby 
authorized to prescribe penalties for the violation of ordinances passed 
in pursuance of this chapter, and determine the disposition of the 
above named articles when upon inspection they, or either of them, 
are found to be foul, tainted, or otherwise unfit for food. 

Sec. 472. Oath of office, bond, etc., of inspectors. Before any 
such inspector or assistant inspector shall enter upon the discharge of 
the duties of his office, he shall take an oath or affirmation that he 
will faithfully and impartially execute the duties required of him hy 
law ; and such inspector shall, moreover, enter into bond with suffi¬ 
cient security to he approved by the council, in such sum as the coun¬ 
cil may require, not less than one thousand dollars, made payable to 
the corporation where such inspector is appointed ; which bond shall 
he deposited with' the clerk, conditioned for the faithful and im¬ 
partial performance of the duties required of him hy law. 

Sec. 473. Compensation of inspectors. Said inspectors shall he 
paid such compensation, not exceeding the sum of fifteen hundred 
dollars each, per annum, in such manner and at such times as the 
council may determine. 

Sec. 474. Inspectors for other purposes may be appointed. The 
council of any city or incorporated village may provide by ordinance 
for the appointment of a suitable number of inspectors, for all such 
purposes as are not provided for by law, who shall hold their office 
for the term of three years; and for issuing licenses to such inspectors* 
and to regulate the fees to be paid them for their services. 


[ 119 ] 


CHAPTER XLII. 

IDENTITY OF CORPORATION AND TOWNSHIP LINES-CHANGE OF TOWNSHIP 

BOUNDARIES. 1 

Section. Section. 

475. When office of township trustees, etc., 479. Suits, judgments, etc., to he transferred 

shall be abolished—infirmary direct- to corporation. 

ors. 480. Change of boundaries in certain cases. 

476. Powers and duties of infirmary directors. 481. Annexation of surplus territory, etc. 

477. Duties of corporation treasurer and 482. When limits of two or more townships 

clerk. shall constitute but one, etc. 

478. Township property to vest in council, 483. Application for change of boundaries in 

etc. certain cases. 

Sec. 475. When office of township trustees, etc., shall be abol¬ 
ished—infirmary directors. Whenever the corporate limits of any 
city or incorporated village become identical with those of any town¬ 
ship, then and thereafter the office of township trustees, township 
treasurer, and township clerk, shall be abolished and cease; and all of 
the powers and duties of trustees of townships, conferred or prescribed 
by law, shall vest in and be performed by the council, except as to 
binding out apprentices and administering relief to the poor ; and if 
such corporation is not already provided with an infirmary, the council 
shall forthwith, and from year to year, appoint one or more, and not 
exceeding three, directors of the infirmary, and prescribe their duties 
by ordinance. 

Sec. 476. Powers and duties of infirmary directors. Such di¬ 
rectors shall be clothed with all the powers and perform all the duties 
of township trustees, as to binding out and protecting apprentices, in 
relieving and removing paupers, and in counties having county infirm¬ 
aries to make orders relative to paupers ; which orders shall have the 
same validity, and be treated the same as like orders made by town¬ 
ship trustees; and they shall have the power of recovering, in the 
name of the corporation, such expense as may be chargeable to other 
municipal corporations or persons. 

Sec. 477. Duties of corporation treasurer and cleric. The duties 
of treasurer and clerk of such township shall be performed by the 
clerk and treasurer of the corporation; and all moneys collected or 
authorized by law to be paid to the township treasurer shall be paid 
to such corporation treasurer. 

Sec. 478. Township property to vest in council, etc. All prop¬ 
erty, real and personal, together with all moneys and credits, books. 


i Act of April 8,1856 (4 Curwen, ch. 1632.) 

An action may be maintained by the directors of a county infirmary 
against a city of the second class in another county (where the bounda¬ 
ries of such city are identical with those of a township, and such town¬ 
ship has thereby become merged in the city), for expenses incurred in 
furnishing temporary relief to, and removing an insane pauper, having a 
legal settlement in such city. 

Such action may be brought, either in the county for which the plain¬ 
tiffs are infirmary directors, and where the relief was furnished, or in 
the county in which the city, defendant, is situated. Directors of M-us - 
fcingum Co. Infirmary v. Toledo , 15 0. S. 409. 



[ 120 ]- 

vouchers, records, files, accounts, documents and bonds of an official 
character, in the possession or under the control of said township trus¬ 
tees, township clerk or township treasurer, or either of them, whose 
offices are thus abolished, shall vest in the council; and such township 
officers shall, when their offices have ceased by operation of this act, 
forthwith deliver over to the council of the corporation a full state¬ 
ment of their accounts, together with the property, moneys, credits, 
books, records, accounts, files, vouchers, official bonds and documents 
aforesaid. 

Sec. 479. Suits, judgments, etc., to be transferred to corporation . 
All suits pending and judgments recovered by or against any such 
township, together with all rights, interests, claims and demands, in 
favor of and against the same, may be continued, prosecuted, collected 
or enforced by or against the corporation; and all suits authorized by 
law to be brought by or against such township or township trustees, 
not caused by their non-compliance with this act, shall be prosecuted 
by or against the corporation. 

Sec. 480. Change of boundaries in certain cases. If the limits 
of any corporation do not comprise the whole territory of any estab¬ 
lished township in which the same is situate, or if they include ter¬ 
ritory comprised in more than one township, and the council of such 
corporation shall in either case, by a vote of a majority of the mem¬ 
bers thereof, petition the board of county commissioners of the proper 
county for a change of township boundaries, such county commission¬ 
ers may, on the presentation of such petition with the proceedings of 
the council duly authenticated, at any regular or adjourned session, so 
change the boundaries of the township or townships in which the 
principal part of the corporation is situated, as to make the same iden¬ 
tical, in all respects, with the boundaries of the corporation. 

Sec. 481. Annexation of surplus territory. In making such 
change, said board of county commisgioners shall annex the surplus 
territory, if any, so cut off from the township thus reduced to limits 
identical with the corporation, to any township or townships contigu¬ 
ous ; or if such surplus shall contain sufficient territory, may erect 
the same into a new township, as in their opinion will best promote 
justice and the public convenience. 

Sec. 482. When limits of two or more townships shall consti¬ 
tute but one, etc. Where the limits of more than one township, por¬ 
tions of which are comprised within the corporation limits, have been 
reduced in the manner above provided, the territory embraced within 
the corporation limits shall thereafter constitute one township, and 
bear the name of that township within the corporation limits having 
the largest area of territory. 

Sec. 483. Application for change of boundaries in certain 
cases. Where the corporation is situate in two or more counties, the 
application authorized by section four hundred and eighty, may be 
made to the county commissioners of the county in which the largest 
portion of the territory of the corporation is contained. 


[ 121 ] 


CHAPTER XLIII. 

TWO DAYS’ LABOR ON THE STREETS-ROAD TAX. 1 

Section. Section. 

484. Labor on streets, who are liable, etc. 488. Attachment of contiguous territory for 

485. Penalty, etc., for refusal to perform la- road purposes. 

bor. 489. Collection of fines, forfeitures, etc. 

486. Road districts and street commissioners. 490. Exemption from provisions of this chap- 

487. Road taxes, how collected and applied. ter. 

Sec. 484. Labor on streets, who are liable, etc. The council of 
any incorporated village or city shall have power to require each able- 
bodied male person between the ages of twenty-one and fifty-five years, 
resident within the corporation, or within any contiguous territory 
that shall be attached thereto for the purposes of this chapter as here¬ 
inafter provided, to perform in each and every year two days’ labor 
upon the streets and alleys of such corporation, and upon the public 
roads or highways, or parts thereof that lie within the contiguous ter¬ 
ritory so attached as aforesaid ; which labor shall be in lieu of the two 
days’ labor required under the present laws regulating roads and high¬ 
ways. 

Sec. 485. Penalty, etc., for refusal to perform labor. Upon 
refusal to perform such work under the proper street commissioner, 
or other officer appointed by the council, the delinquent shall be lia¬ 
ble to the same fines, penalties and forfeitures as are provided by law 
against persons refusing to perform the two days’ labor upon the 
roads and highways in other cases ; and the same shall be recovered 
in the name of the corporation before the mayor thereof. 

Sec. 486. Road districts and street commissioners. The council 
shall have power to form road districts within the limits of the cor¬ 
poration and contiguous territory attached as aforesaid, and to appoint 
suitable street commissioners, or other proper officers, for any length 
of time, not exceeding two years, for such districts, or for the whole 
limits of such corporation and the contiguous territory attached as 
aforesaid, who shall be governed in the performance of their duties by 
the by-laws and ordinances of the corporation. 

Sec. 487. Road taxes, how collected and applied. No tax as¬ 
sessed upon property within the territory attached to any corporation 
as aforesaid, shall be applied otherwise than within the territory 
in which the same is assessed; and all taxes charged for road pur¬ 
poses on the property within the limits of the corporation, or the ter¬ 
ritory so attached, and collected by the county treasurer, shall be paid 
over to the corporation treasurer, to be specially appropriated by the 
council to street and road purposes within the corporate limits and 
territory so attached; and the trustees of the township in which said 
territory is located and the council may agree upon a different distribu¬ 
tion or division of said funds. 

Sec. 488. Attachment of contiguous territory for road purposes. 


i Act of April 5,1859 (4 Curwen, ch. 2025); April 16,1867 (64 0. L. 241.) 



L122 3 

It shall he the duty of the council and the trustees of townships re¬ 
spectively in which any such corporation shall be situated, as soon 
after the passage of this act as practicable, and when from the sparse¬ 
ness of population the public interest shall require it, to attach to the 
corporation any territory lying contiguous thereto for the purposes 
mentioned in this chapter. 

Sec. 489. Collection of fines, forfeitures, etc. The said street com¬ 
missioners, or other proper officers, shall have power to collect by suit, 
all fines, forfeitures and penalties arising under the provisions of this 
chapter ; and they are hereby authorized and required, before their an¬ 
nual settlement with the council, to prosecute to final judgment all 
persons neglecting or refusing to comply with the provisions of this 
chapter, from whom, in the opinion of such street commissioners, or 
other proper officers, such fine, penalty or forfeiture can be collected. 

Sec. 490. Exemption from provisions of this chapter. All per¬ 
sons who are, or may be exempt from performing labor on the public 
highways by any law of this state, shall not he subject to the provis¬ 
ions of this chapter. 


CHAPTER XLIY. 

VACATING STREET OR ALLEY. 1 
Section. Section. 

491. Streets, may be vacated on petition, etc. 493. Effect of order of vacation, etc. 

492. Notice of petition to be published. 

Sec. 491. Streets may he vacated on petition, etc. The council of 
any city or incorporated village, on petition filed by any person or per¬ 
sons owning any lot or lots in the corporation, praying that any street 
or streets, alley or alleys, in the immediate vicinity of such lot or 
lots, may he vacated or narrowed, may, upon hearing and being satis¬ 
fied that there is good cause for such vacation or narrowing, and that 
it will not be detrimental to the general interest, and that the same 
should be made, declare such street or streets, alley or alleys, vacated 
or narrowed. 

Sec. 492. Notice of petition to he published. No street or alley 
shall be vacated or narrowed as aforesaid, unless notice of the pen¬ 
dency and prayer of the petition shall he given by publishing the same 
in some newspaper, published in such corporation, for six consecutive 
weeks immediately preceding action on such petition; or in case no 
newspaper is published in the corporation, by posting such notice 
in three public places therein, six weeks immediately preceding such 
action. 

Sec. 493. Effect of order of vacation, etc. The order of the 
council, vacating or narrowing any street or alley which has been ded¬ 
icated to public use by the proprietor, shall, to the extent to which 

iA 7 n' Ct ° f March n ’ 1853 > $ 13 > as amended April 29, 1854; 4 Curwen, ch. 





[ 123 ] 

the same is vacated or narrowed, operate as a revocation of the ac¬ 
ceptance thereof by the council; hut the right of way and easement 
therein of any lot-owner shall not be impaired thereby. 


CHAPTER XLV. 

DAMAGES FOR EXCAVATIONS. 1 
Section. Section. 

494. Damages by excavation to be recovered 495. Depth of excavation allowable, 
by civil action. 

Sec. 494. Damages by excavation to be recovered by civil ac¬ 
tion. If the owner or possessor of any lot or land in any city or in¬ 
corporated village, shall dig or cause to he dug, any cellar, pit, vault 
or excavation, to a greater depth than nine feet below the curb of the 
street on which such lot or land abuts, or if there he no curb, below 
the surface of the adjoining lots ; and shall, by such excavation, cause 
any damage to any wall, house or other building, upon the lots ad¬ 
joining thereto, the said owner or possessor shall be liable, in a civil ac¬ 
tion, to the party injured, to the full amount of the damage aforesaid. 

Sec. 495. Depth of excavation allowable. Such owner or possessor 
may dig, or cause to be dug, any such cellar, pit, or excavation, to the 
full depth of any foundation walls of any buildings upon the adjoining 
lots, or to the full depth of nine feet below the established grade of 
the street whereon such lot abuts, without reference to the depth of 
adjoining foundation walls, without incurring the liability prescribed 
in this chapter. 


CHAPTER XLYI. 

BOARD OF IMPROVEMENTS. 2 


Section. 

496. Composition of board of improvements. 

497. Duties of board of improvements. 

498. Powers of the board. 

499. Clerk of board, his duties, etc. 

600. Superintendents of improvements. 

501. No improvements without recommenda¬ 
tion of board. 


Section. 

502. Powers and duties of board. 

503. Petitions to be presented to board, etc. 

504. Special boards of improvements in vil¬ 

lages. 

505. Powers and duties thereof. 

506. No compensation allowed. 


Sec. 496. Composition of board of improvements. Whenever 
the council of any city shall establish a hoard of improvements, such 
board shall he composed of the mayor, the civil engineer, the street 
commissioner, the chairman of the committee on streets of the city 
council, and one resident freehold elector of the corporation, to he ap¬ 
pointed by the mayor, with the consent of the council, for such time 
as may by ordinance be provided. 


1 Act of April 28,1854; 4 Curwen, ch. 1462. 

2 Act of 1852, § 105; April 27,1868 (65 O. L. 110); April 3,1867 (64 O. L* 
106.) 





[124] 

Sec. 497. Duties of board of improvements. It shall he the duty 
of the hoard to supervise the lighting, cleaning, repairing and improv¬ 
ing of all streets, alleys, avenues, lanes, public squares and parks, 
public wharves and landings, market-houses and spaces, bridges, sew¬ 
ers, culverts and ship channels, navigable streams, and water-courses, 
within the corporation, or the control of the council thereof. 

Sec. 498. Powers of the board. It shall have power to adopt 
such rules and regulations for its government as it may deem necessary 
and expedient to effect the purpose of its organization, not inconsistent 
with the ordinances of the corporation or constitution or laws of the 
state. 

Sec. 499. Clerk of board, Ms duties, etc. It shall have power to 
appoint a clerk, whose duty it shall be to attend all meetings of the 
board, and keep a complete journal of all its proceedings, orders and 
resolutions, which journal shall be at all times open for public inspec¬ 
tion. It shall also be the duty of the clerk to perform such other 
duties as the board shall from time to time require; and he shall be 
entitled to receive such compensation for his services as the council, 
upon the recommendation of the board, may determine. 

Sec. 500. Superintendent of improvements. Such board shall also 
have power to employ such person or persons to superintend and per¬ 
form the work of making improvements as the interests of the corpo¬ 
ration demand; and the services of such employes shall be paid, on 
the recommendation of the board, in such manner as the council may 
determine. 

Sec. 501. No improvements without recommendation of board. No 
improvement or repairs shall be ordered or directed by the council for 
any street, lane, alley, avenue, park, public grounds, market-houses or 
spaces, bridges, sewers, culverts, navigable streams, water-courses, 
ship channels, public wharves or landings of the corporation, except 
on the report and recommendation of the board of improvements. 1 

Sec. 502. Powers and duties of board. The board shall exercise 
such powers and perform such duties in the superintendence and con¬ 
struction of public works and improvements constructed by authority 
of the council or owned by the corporation, and perform such other 
duties relating to the public improvements and the enforcement of ordi- 


i In an action by the contractor against the owner of property to re¬ 
cover an assessment for paving, etc., it is not necessary that the petition 
on appeal in the Court of Common Pleas should show that the Board of 
City Improvements reported an ordinance to the city council for the 
paving of the street; nor that the determination to assess the value of the 
work upon the lots bordering upon the street was made before the work 
was done. And it is no ground of objection that the action before the 
magistrate was simply for a money demand, whereas the petition prayed 
for a sale of the real estate on ascertaining the amount due. Cox, J., in 
Leonard v. Smith , Hamilton Common Pleas, following French v. Lowry , 
Hamilton District Court. MS. 

To the same effect is Reynolds v. Hammond, Superior Court of Cincinnati, 
General Term, 1868. MS. 



1125] 

nances relating to tlie streets of the corporation, as the council may 
from time to time prescribe. 

Sec. 503. Petitions to be presented to board , etc. All petitions for 
improvements from owners of property shall be presented to the hoard, 
who shall report from time to time to the council when any such im¬ 
provement is necessary or proper; and when any assessment is required, 
they shall report the same, and an estimate of the amount to he assessed, 
and the council shall take such action thereon, as may he deemed 
proper. 

Sec. 504. Special boards of improvements in villages. The council 
of any incorporated village, in which there is no civil engineer or 
street commissioner chosen hy the electors, shall have the power to 
appoint two resident freehold electors of the corporation, who shall 
hold their office for two years, and who, with the mayor, shall consti¬ 
tute the hoard of improvements of such corporation. 

Sec. 505. Powers and duties thereof. Such hoard shall have the 
same powers and perform the same duties in respect to the incorporated 
village as are invested in and required of the hoard of city improve¬ 
ments under the preceding sections of this chapter. 

Sec. 506. No compensation allowed. The hoard of improvements 
shall not be entitled to receive any compensation for their services. 


CHAPTER XLVII. 

APPROPRIATION OF PRIVATE PROPERTY BY MUNICIPAL CORPORATIONS FOR 

PUBLIC USES. 1 


Section. 

507. Purposes for which private property 
may be appropriated. 

608. Appropriation for right of way, etc. 
600. Definitions. 

510. Appropriation of turnpikes or plank 

roads. 

511. Concurrence of two-tliirds of council 

necessary for condemnation, etc. 

512. Declaration of purpose to appropriate, 

etc. 

513. Application to court, etc. 

514. Personal service of notice to owners, etc. 

515. Court to set a time for inquiry, etc. 

516. Special term of court may be held. 

517. Jurors in probate court, how drawn, etc. 

518. Inquiry, etc., to be at time appointed. 

519. A view of the premises may be required. 

520. Guardian ad litem for infants, etc. 

521. Fuller description of property may be 

required. 

522. Assessment, how made. 

523. Verdict in whole or in part. 


Section. 

524. Order as to payment or deposit. 

525. Time and manner of delivery of prop¬ 

erty. 

526. Costs, how to be paid. 

527. No delay from doubt of ownership. 

528. Interested parties may give bond, etc. 

529. Review, when and how it may be had. 

530. When execution of order may be sus¬ 

pended. 

531. Appeal to court of common pleas. 

532. Notice of appeal, and guarantee. 

533. As to appeal by guardian, married wo¬ 

man, etc, 

534. Probate judge shall furnish transcript, 

etc. 

535. Original papers may be used. 

536. Corporation shall not appeal. 

537. Effect of neglect to take possession in 

six months. 

538. Provisions of this chapter applicable to 

villages. 


Sec. 507. Purposes for which private property may be appro¬ 
priated. Each city and incorporated village shall have power to ap- 


i Tlie cases in relation to the appropriation of private property to the use 
of corporations, municipal and others, are collected in The Ohio Digest, 
pp. 197, 205, 229, 506, 512, 548, 579. And see Jackson v. Jackson , 16 O. S. 




[ 126 ] 


propriate, enter upon and hold real estate within its corporate limits, 
for the following purposes ; but no more shall he taken or appropriated 
than is reasonably necessary for the purpose to which it is to he ap¬ 
plied : 

1. For opening, widening, straightening and extending streets, al¬ 
leys and avenues 

2. For market-spaces. 

3. For buildings and structures required for the use of the fire de¬ 
partment. 

4. For public halls and necessary offices. 

5. For prisons. 

6. For infirmaries. 

7. For work-houses. 

8. For houses of refuge and correction. 

For the four purposes last above named the right to appropriate 
may he exercised any-where within the county in which the corpora¬ 
tion or any part thereof is located. 

9. For public hospitals. 

10. For public parks. 

11. For gas-works. 

12. For water-works ; and for this purpose the right to appropriate 
shall not be limited to lands lying within the limits of the corporation. 

13. For school-house sites and grounds, the same having been rec¬ 
ommended and the site selected by the board of education. 

14. For public cemeteries ; and for this purpose the right to appro¬ 
priate shall not be limited to lands lying within the corporation. But 
no land shall be appropriated under this provision until the court shall 
be satisfied that suitable premises can not be obtained by contract 
upon reasonable terms, and no lands shall be appropriated upon which 
there may be any dwelling-house, barn, stable or other farm building ; 
or upon which there shall be any orchard or nursery, or any valuable 
mineral or other medicinal spring; or any well actually yielding oil or 
salt-water; nor shall any land be appropriated within two hundred 
yards of any dwelling-house. 

15. For public wharves and landings on navigable waters. 


163; Miller v. Graham, YJ O. S. 1 ; Match v. Cincinnati & I. E. Go., 18 O. 

S. 

In Harleck v. Toledo , 11 O. S. 219-222, the court recognized the soundness 
of these principles in a case in which was involved the power of a mu¬ 
nicipal corporation to take private property for public use: “No preroga¬ 
tive of sovereignty should be watched with greater vigilance than that 
which takes private property for public use. It should never be exercised 
except when the public interests clearly demand it, and then cautiously; 
and the requirements of the statute authorizing its exercise must be strictly 
pursued.” * * * * “ When this power is delegated by the 

legislature to a municipal or other corporation, its exercise is subject to 
the inflexible rule, that the power must be strictly pursued, and, ordina¬ 
rily, it must appear to be so on the face of the proceedings.” * * * 

“ Their authority is special, limited and conditional, and must be strictly 
followed. The law is made for their benefit, and it is their duty to take 
the previous steps incumbent on them, or they are trespassers.” 



[127] 

16. For levees to protect against floods; and for this purpose the 
corporation shall have power to appropriate, enter upon, and take 
private property lying outside of the corporate limits ; and may ex¬ 
tend and strengthen its levees and embankments along any river or 
stream adjacent to the limits of the corporation; and may widen the 
channel of such river or stream. 

17. For necessary bridges. 

18. For constructing, opening, excavating, improving, deepening, en¬ 
larging, straightening, or extending any canal, ship-channel or water¬ 
course, located in whole or in part within the limits of the corporation, 
which is not owned in whole or in part by the state, or by any company 
or individual authorized by law to make such improvement. 

19 For sewers, drains and ditches. 

20. For public water-closets and privies. 

21. For lighting any public use. 1 

Sec. 508. Appropriation for right of way, etc. The power to 
appropriate may also be exercised where it is necessary to acquire the 
right of way to, or additional grounds for the enlargement or improve¬ 
ment of any public use herein specified. And whenever material is 
required for the construction, improvement, or repair of any such use, 
the corporate authorities are empowered to enter, appropriate and take 
the same; and for this purpose they may go outside the corporate 
limits. 2 

Sec. 509. Definitions. The terms “land” and “real estate,” as 
used in this chapter, shall be regarded as including rights and ease¬ 
ments of an incorporeal nature. 3 

Sec. 510. Appropriation of turnpikes or plank roads. When any 
turnpike or plank road terminates within the corporate limits, any 
portion of such turnpike or plank road so included therein, shall be¬ 
come a public street of the corporation, and shall be maintained and 
kept in repair as other streets; and the council may cause the same 
to be condemned and appropriated for use as such, according to the 
provisions of this chapter. 3 

Sec. 511. Concurrence of two-thirds of council necessary for 
condemnation, etc. No improvement requiring proceedings for the 
condemnation of private property, shall be made without the concur¬ 
rence in the by-law, ordinance or resolution directing the same, of 
two-thirds of the whole number of the members elected to the council. 4 

Sec. 512. Declaration of purpose to appropriate, etc. When it shall 
be deemed necessary by any municipal corporation to appropriate pri¬ 
vate property, as above provided, the council shall, by resolution, 

1 Act of 1852, § 26, as amended May 1,1858 (4 Curwen, cli. 1880); April 
6, 1866 (63 O. L. 152); March 11,1867 (64 O. L. 45); April 8, 1865 (62 O. L, 
101); April 10, 1867 (64 O. L. 123); March 28, 1864 (61 O. L. 71); April 29. 
1854 (4 Curwen, ch. 1463); February 9,1863 (60 O. L. 6); April, 11,1867 
(64 O. L. 124.) 

2 Act of 1852, § 26. 

3 Act of April 6,1866; 63 O. L. 187. 

4 Act of 1852, § 104, March 29,1866; 63 O. L. 61. 



[ 128 ] 

declare such intent, defining therein the purpose of the appropriation, 
and setting out a pertinent description of the property designed to he 
appropriated. On the passage of such resolution, the yeas and nays 
shall be taken and entered on the record of the proceedings of the 
council. 1 

Sec. 518. Application to court , etc. Upon the passage of the reso¬ 
lution by the requisite majority, application in writing shall be made 
to the court of common pleas of the proper county, or to the judge 
thereof, in vacation, or to the probate court of the proper county, which 
application shall describe as correctly as may be the property to be 
taken, the object proposed, and shall name the owners of the property, 
and of each lot or parcel thereof, known. 1 

Sec. 514. Personal service of notice to owners , etc. Notice of the 
time and place of such application shall be given personally, in the 
ordinary manner of serving legal process, to all the owners of the 
property sought to be appropriated, resident in the state, whose place 
of residence is known; and to all others, by publishing a copy of the 
application, with a statement of the time and place at which it is to 
be made, for three weeks next preceding the time of the application, in 
some newspaper of general circulation in the county. 1 

Sec. 515. Court shall set a time for inquiry. If it shall appear 
to the court or judge that such notice has been served five days before 
the time of the application, or has been published as above provided, 
and that such notice is reasonably specific and certain, the court or 
judge may set a time for the inquiry into and assessment of compen¬ 
sation, by a jury of twelve men, unless all the parties shall agree upon 
a less number, who shall be duly sworn to discharge that duty. 2 

Sec. 516. Special term of court may be held. If the application be 
in the court of common pleas, and such court shall not be in session on 
the day fixed for the inquiry and assessment of compensation, the judge 
of the court of common pleas of the subdivision in which the property 
is situated, or in case of his absence, interest or disability, any other 
judge of said court within the district shall hold a special term of said 
court, for the purpose of hearing and determining such inquiry and 
assessment, and shall direct a jury to be summoned for the purpose of 
making such inquiry, in the same manner that petit jurors are sum¬ 
moned in the court of common pleas for other purposes. 2 


1 Act of 1852, § 27. April 3,1856; 4 Curwen, ch. 1567. 

The power conferred upon a municipal corporation to take private prop¬ 
erty for public use, must be strictly followed; and, therefore, where the 
statute required the corporation as a substitute for personal service upon 
the owners, to publish “ a copy of the application with a statement of the 
time and place at which it is to be made,” the publication of a notice of the 
time and place for making the application, describing therein the prop¬ 
erty and the purposes for which it is to be taken, but not accompanied by 
a “ copy of the application,” is not a compliance with this statutory pre¬ 
requisite, and does not confer upon the court or judge authority to make 
an order appropriating the lands. HarbecJc v. Toledo , 11 O. S. 219; D. & 
W. B. B. Go. v. Marshall , 11 0. S. 497. 

2 Act of 1852, §27. 



[129] 

Sec. 517. Jurors in probate court , how drawn, etc. If the ap¬ 
plication be in the probate court, the clerk of the court of common 
pleas of the county shall, on the day fixed for the application, in the 
presence of the probate judge, draw twelve names, or such less num¬ 
ber as may be agreed upon by the parties, from the box containing the 
names of persons selected as jurors for the county ; and the persons so 
drawn shall be summoned and serve as the jury, unless excused or set 
aside by the court for good cause shown. If, for any cause, the panej 
is not full, the probate judge shall fill the same from the bystanders. 1 

Sec. 518. Inquiry , etc., to be at the time appointed . The in¬ 
quiry and assessment shall be made at the time appointed, unless, 
for good cause, continued to another day. 1 

Sec. 519. A view of the premises may be required. A view of 
the premises shall be ordered, when desired by the jury, or demanded 
by any party interested in the proceeding. 1 

Sec. 520. Guardian ad litem for iiifants, etc. If, at the time of 
such application, it shall appear that any of the owners of the prop¬ 
erty sought to be appropriated are infants, or insane, and that they 
have no guardian, a guardian ad litem shall be appointed to act in 
their behalf. 1 

Sec. 521. Fuller description of property may be required. The 
corporation may be required to file a more full and accurate descrip¬ 
tion of the property to be taken, and the object proposed, and maps, 
plats and surveys, if in the opinion of the court, the same shall be 
necessary and proper. 1 

Sec. 522. Assessment , how made. The assessment shall be in 
writing, signed by the jury, and shall be made so that the amount 
payable to each owner may be ascertained, either by allotting it to 
each owner by name, or on each lot or parcel of land; and the in¬ 
quiry and assessment shall, in other respects, be made by the jury, 
under such rules and regulations as shall be given by the court. 1 


i Act of 1852, § 57. 

A railroad company having located its road, has no right to relocate a 
part of the road on the property of an individual, nor to use a street or 
highway for that purpose. Little M. R. R. Go. v. Naylor , 2 O. S. 235. 

An action lies as well for damages to adjoining property by stopping 
or impairing the travel on, to or from a street or highway, as any other 
damage that can be done to property, although the property injured maj’ 
not be touched by the obstruction, lb. 

A corporation seeking to appropriate private property to public uses 
may discontinue the proceeding for assessment of compensation, at anj^ 
time, at least before the submission of the inquiry to the jury. D. & W. 
R. R. Go. v. Marshall , 11 O. S. 497. 

Where the legislature, in the constitutional exercise of the right of 
eminent domain, authorizes an act, the necessary consequence of which is 
to injure the property of another, and at the same time prescribes the par¬ 
ticular mode in which the damages shall be ascertained and compensated, 
giving to the injured party the right to resort to the same, the person or 
corporation acting under such authority, and within the scope thereof, is 
not a wrong-doer, nor liable to an action for a tort, but must be proceeded 
against under the statute remedy. Little M. R. R. Go. v. Whitacre, 8 O. S.- 
590. 


9 




[130] 

Sec. 528. Verdict in whole or in part. The jury shall he sworn 
to make the whole inquiry and assessment, hut may he allowed to re¬ 
turn a verdict as to part, and he discharged as to the rest, in the dis¬ 
cretion of the court; and in case a jury shall be discharged from ren¬ 
dering a verdict in whole or in part, another shall be drawn and em- 
panneled at the earliest convenient time, who shall make the whole 
inquiry and assessment, or the part not made, as the case may be. 1 

Sec. 524. Order as to payment or deposit. So soon as the amount 
of. compensation which may be due to the owners of the property to 
be taken, or to any of them, shall have been ascertained by the jury, 
the court shall make such order as to its payment or its deposit, as 
shall he deemed right and proper in respect to the time and place of pay¬ 
ment or deposit, or to the persons entitled to receive payment, and the 
proportion payable to each, and may require adverse claimants for any 
part of the money or property, to interplead, so as fully to settle and 
determine their right and interests, according to equity and justice. 2 * 4 

Sec. 525. Time and manner of delivery of property. The court 
may direct the time and manner in which possession of the property 
condemned shall be taken or delivered, and may, if necessary, enforce 
any order giving possession. 2 

Sec. 526. Costs , how to he paid. The costs occasioned by the in¬ 
quiry and assessment shall he paid by the corporation, and the other 
costs which may arise shall he charged or taxed as the court in its 
discretion may direct. 2 

Sec. 527. No delay from doubt of ownership. No delay in making 
an assessment of compensation, or in taking possession, shall be oc¬ 
casioned by any doubt which may arise as to the ownership of the 
property, or any part thereof, or as to the interests of the respective 
owners; hut in such cases the court shall require a deposit of the 
money allowed as compensation for the whole property, or the part in 
dispute; and in all cases, as soon as the corporation shall have paid 
the compensation assessed, or secured its payment by a deposit of 
money under the order of the court, possession of the property may 
be taken, and the public work or improvement progress. 2 

Sec. 528. Interested parties may give bond ) etc. Any person or 
persons interested in the appropriation of private land for any street, 
alley or public highway, may, before or after the passage of an ordi¬ 
nance for the opening of such street, alley, or public highway, or be¬ 
fore or after application to the court, execute his, her or their bond, pay¬ 
able to the corporation, to the acceptance of the council, conditioned for 
the payment of all damages which may be assessed by the jury; and 
such bond shall be good in law, and if such bondsmen shall make pay¬ 
ment or deposit according to the order of the court, then such street, 

1 Act of 1852, § 27. 

2 Act of 1852, § 28, as amended April 17,1857; 4 Curwen, ch. 1787. 

A city council in passing an ordinance to appropriate land for a street 
does not act judicially, nor is the assessment of damages by the com¬ 
mittee appointed for that purpose a judicial act. McMickenx. Cincinnati , 

4 0. S. 394. 



[131] 

alley or highway shall be opened; or the corporation may, at its dis¬ 
cretion, make such payment or deposit, and collect by law the amount 
of such damages of such bondsmen, with or without costs, as the 
court may direct. 1 

Sec. 529. Review , when and how it may be had. Where the pro¬ 
ceeding was in the court of common pleas, whether upon an original 
application therein, or upon an appeal from the probate court, any 
party interested in such inquiry and assessment, who shall feel ag¬ 
grieved by the finding of the jury, or the order of the court, may have 
the part thereof in which such party may be interested and feel ag¬ 
grieved, reviewed in the district court, by filing a petition for that 
purpose in the court of common pleas during the term at which the 
finding or decision complained of shall have been made; and it shall 
be the duty of the court of common pleas to report, in the nature of 
a bill of exceptions, the facts necessary to show the ground of the 
finding or decision ; and said petition and report, or a transcript thereof, 
being filed in the district court, (which shall be done on or before the 
first day of the next term thereof,) the matter shall be heard and deter¬ 
mined ; and if the court shall find that right and justice has not been 
done, a new assessment may be ordered by a jury in that court, which 
shall be made without delay, at the same term, if practicable; or such 
other final order or judgment shall be made as may be deemed proper 
and equitable. 2 

Sec. 530. When execution of order may be suspended. When 
such petition shall be filed, the court of common pleas may suspend 
the execution of any order which may have been made, on such terms 
as may be deemed proper, and may require a bond, with security for 
the payment of any damages or costs which may be thereby occa¬ 
sioned ; but in all cases where the municipal corporation shall pay, 
or secure by a deposit of money, the compensation assessed by the 
jury, and shall give such security as may be deemed adequate to pay 
any further compensation, and all damages and costs which may be 
adjudged in the district court, the right to take and hold the property 
condemned shall not be affected by any such review. 2 

Sec. 531. Appeal to court of common pleas. Where the proceed¬ 
ing was had in the probate court, any party interested in the inquiry 
and assessment may take an appeal to the court of common pleas; 
and thereupon the same proceedings shall be had as if the application 
had been originally made in that court, except that the corporation 
shall not be required to give notice of its application, and the inquiry 
and assessment shall be limited to the case of the party taking the 
appeal. The court shall make such order for the payment of the costs 
accruing upon the appeal as may seem equitable and just. 3 

Sec. 532. Notice of appeal and undertaking. The party desirous 

1 See note 2, ante, p. 130. 

2 Act of 1852, § 29. 

3 Act of May 1,1854 (4 Curwen, ch. 1496), as amended February 7,1856; 
(4 Curwen, ch. 1529); February 28, 1866 (63 O. L. 26.) 



[132] 

of appealing, shall, within ten days after the date of the final order 
determining the rights of such party, file with the probate judge notice 
of his or her intention to appeal; and shall further, within twenty 
days after the making of said order, give a written undertaking to the 
adverse party, with one or more sufficient sureties to he approved by 
the probate judge, conditioned that the party appealing shall abide by 
and perform the order, judgment or decree of the appellate court, and 
pay all costs or moneys which may be awarded against said party by 
such court. 1 

Sec. 533. As to appeal by guardian , married woman, etc. 
When the appeal is taken by any person as guardian, executor or ad¬ 
ministrator, who has given bond as such to the state, no undertaking 
shall be required from such guardian, executor or administrator. 
When an appeal is taken by a married woman, it shall be sufficient if 
the undertaking is signed by her surety or sureties. 1 

Sec. 534. Probate judge shall furnish transcript, etc. The pro¬ 
bate judge shall, upon the giving of the undertaking as above pro¬ 
vided, or upon the filing of notice of the intention to appeal where no 
undertaking is required, make out an authenticated transcript of the 
docket or journal entries and of the order or decision appealed from, 
which shall be forthwith filed with the clerk of the court of common 
pleas by the person appealing, and the appeal shall thereupon be con¬ 
sidered perfected. If the transcript is not filed within thirty days 
after the date of the undertaking, or of the filing of the notice of in¬ 
tention to appeal where no undertaking is required, the party shall be 
deemed to have waived an appeal. 2 

Sec. 535. Original papers may be used. The original papers per¬ 
taining to the proceeding may be used upon the hearing or inquiry in 
the court of common pleas, and shall be transmitted by the probate 
judge for that purpose. 2 

Sec. 536. Corporation shall not appeal. The municipal corpora¬ 
tion shall have no right of review or appeal. 

Sec. 537. Effect of neglect to take possession in six months. 
Whenever a municipal corporation shall make an appropriation of land 
for any purpose specified in this chapter, and shall fail to pay for or 
take possession of the same within six months after the assessment of 
compensation shall have been made, as above provided, the right of 
such corporation to make such appropriation on the terms of the as¬ 
sessment so made, shall cease and determine; and any land so appro¬ 
priated shall be relieved from all incumbrance on account of the pro¬ 
ceeding in such case or the resolution of the council making the ap¬ 
propriation ; and the judgment or order of the court, directing such 
assessment to be paid, shall cease to be of any effect, except as to the 
costs adjudged against the corporation. 2 

Sec. 538. Provisions of this chapter applicable to villages. In 
cases in which incorporated villages for special purposes are authorized 


1 See note 3, ante, p. 131. 

2 Act of 1854 (4 Curwen, ch. 1496); Act of March 14,1867, §8 (640. L. 52.) 



[ 133 ] 

to appropriate private property, the proceedings shall conform, as far 
as practicable, to the provisions of this chapter. 1 


CHAPTER XLVIII. 


GENERAL RULES RELATIVE TO IMPROVEMENTS AND SPECIAL ASSESSMENTS. 


Section. 

539. For wliat improvements general tax 

shall be levied. 

540. Where concurrence of two-tliirds of 

council requisite. 

541. Assessments on owner of life estate, etc. 
642. Rules of assessment. 

543. Assessment never, to exceed fifty per 

cent, of value. 

544. What shall be estimated as cost of im¬ 

provement. 

545. Lieu from date of assessment. 

540. Amount of assessment and penalty re¬ 
coverable by suit, etc. 

547. How lien may be enforced. 

548. Lien as to non-resident owner. 

549. Lien may be enforced against all own¬ 

ers, or a part. 


Section. 

550. Costs in case of error or defect in pro¬ 

ceedings. 

551. When reassessment may be ordered. 

552. Proceedings upon reassessment. 

553. Special duty of court of common pleas. 

554. Certificate and collection of unpaid as¬ 

sessment. 

555. Payment and application of assessments. 
558. Duration of lien, etc. 

657. Where new action may be commenced. 

558. Collection of assessment in advance. 

559. As to deficiency or excess of assessment. 
580. As to change of grade, after being once 

established. 

561. As to added territory. 

562. Proceedings in making improvements or 

repairs. 


Sec. 539. For what improvements general tax shall he levied. 
For the payment of the cost of the following improvements, including 
the necessary real estate, the council shall levy and assess a tax upon 
the general duplicate of all the real and personal property subject to 
taxation within the limits of the corporation, which levy and assess¬ 
ment shall be by the clerk of the corporation certified to the audi¬ 
tor of the county, and by the auditor charged in the duplicate against 
said taxable property, and collected as other taxes ; that is to say, for 
public halls and neeessary offices, for structures for the fire depart¬ 
ment, for water-works, market houses and spaces, cemeteries, parks, 
infirmaries, hospitals, gas-works, prisons, houses of refuge and correc¬ 
tion, work-houses, public privies, and rights of way, wharves and 
landings on navigable waters, levees and embankments. 2 

Sec. 540. Where concurrence of two-thirds of council requisite - 
. Xo public improvement provided for in chapters forty-nine and fifty, 
the cost or part of the cost of which is to be specially assessed on the 
owners of adjacent property, and no order appointing assessors of 
damages, or confirming their report, shall be made without the con¬ 
currence of two-thirds of the whole number of the members elected to 
the council, unless two-thirds of the owners to be charged shall peti¬ 
tion in writing therefor. 3 

Sec. 541. Assessments on owner of life estate , etc. Where a 
special assessment is made on real estate subject to a life estate, such 


1 See, ante, ch. 5. 

2 Act of February 21, 1866; 63 O. L. 22. 

3 Act of 1S52, § 104; March 11, 1853, § 14; April 8,1856, § 6; May 1, 
1858, § 2; March 29. 1866 (63 O. L. 61); February 19, 1SG6 (63 O. L.1S); 
April 5. 1866 (63 O. L. 144.) 




[134] 

assessment shall be apportioned between tbe owner of tbe life estate 
and the owner of tbe fee in proportion to the relative value of their 
respective estates, such proportion to he ascertained upon the princi¬ 
ples applicable to life annuities. 1 

Sec. 542. Rules of assessment. In making a special assessment 
according to valuation, the council shall be governed by the assessed 
value of lots where the land is subdivided and the lots are numbered 
and recorded. Where there are lots which are not assessed for taxa¬ 
tion, or there is land which is in bulk and not subdivided into such 
lots, the council shall fix the value of such lots or the front of such land 
to the usual depth of lots, by the average of two blocks, one of which 
shall be next adjoining, on each side. If there are no blocks so adjoin¬ 
ing, the council shall fix the value thereof, so that it will be a fair 
average of the assessed value of other lots in the neighborhood. 2 

Sec. 543. Assessment never to exceed fifty per cent, of value . 
In no case shall the tax specially levied and assessed upon any lot or 
land for any improvement, amount to more than fifty per centum of 
the value of such lot or land, after the improvement has been made, 
and all the cost thereof exceeding said per centum that would other¬ 
wise be chargeable on such lot or land, shall be paid by the corpora¬ 
tion out of its general revenue. 3 

Sec. 544. What shall be estimated as cost of improvement. The 
cost of any improvement contemplated in this chapter, and in chapters 

1 Act of May 9,1868; 65 O. L. ?T8. 

Where property was taken by a municipal corporation for a street, and 
a lessee for a term of years who was in the occupancy claimed damages, 
it was held, that the lessee was not released by such act of the municipal 
corporation from his liability to pay rent to the lessor, and therefore he 
was entitled to damages for the injury to his estate during the whole 
term. Foote v. Cincinnati , 11 O. 408. 

2 Original. 

3 Act of February 21,1866; 63 O. L. 22. 

The statutes authorizing municipal corporations to assess the cost of 
improving streets upon the lots and lands abutting thereon, in force in the 
year 1853 (there being no restriction as to the amount to be assessed), did 
not contravene section 6 of article 13 of the Constitution of 1851. Malov 
v. Marietta , 11 O. S. 636. 

In a case arising under the 4th section of the act of April 8,1856, which 
was similar to the provision now in force, Hoadly, J., delivering the opin¬ 
ion of the Superior Court, in General Term, said: '■'■The counsel for K. 
argue that the value of the land must be estimated by the citv council 
after the improvement is made, and that the city is forbidden'to assess 
upon it a greater sum than fifty per centum of this value, and the "whole 
assessment, if there be any excess, is totally void for want of power to 
make it. We do not so understand the law. The object is not to fix the 
time and manner of ascertaining the value of the land further than to 
require that the value of which fifty per centum can be assessed shall 
include any possible increase or enhancement by reason of the improve¬ 
ment. Therefore, the law uses the phrase ‘ value to be estimated after 
said improvement has been made,’ and the object was to furnish a rule by 
which the proper proportions to be paid in any case by the owner and the 
city should be ascertained.” McKeown v„ Pepper* Storer and Matthews, 
JJ., concurred. 



[135] 

forty-nine and fifty, shall include the expense of contsruction, the pur¬ 
chase money of real estate or of any interest therein, where the same 
has been acquired by purchase ; or the value thereof as found by the jury, 
where the same has been appropriated, together with the costs and ex¬ 
penses of the proceeding. It shall embrace the damages assessed in fa¬ 
vor of any owner of adjoining lands, and the costs and expenses of the 
assessment; also, the expense of the preliminary and other surveys ; of 
all printing, and of publishing the notices and ordinances required, 
including notice of assessment, and any other necessary expenditure. 1 

Sec. 545. Lien from date of assessment. All special assessments 
shall be payable by the owner or owners of the property assessed per¬ 
sonally, by the time stipulated in the ordinance making the same, and 
shall be a lien from the date of the assessment upon the respective 
lots or parcels of land assessed. 2 

Sec. 546. Amount of assessment and penalty recoverable by 
suit, etc. If payment be not made by the time stipulated, the amount 
assessed may, together with interest, and a penalty of five per cent, 
thereon, be recovered by suit before a justice of the peace, or other 
court of competent jurisdiction, in the name of the corporation, against 
the owner or owners. 2 

Sec. 547. How lien may be enforced. The lien upon real estate 
may be enforced in any court having general jurisdiction, in the name 
of the corporation. 

Sec. 548. Lien as to non-resident owner. In proceedings to en¬ 
force the lien, when the owner of any lot or land assessed, is a non¬ 
resident of the state, or unknown, notice shall be given by publication 
in the manner prescribed by law in similar cases. 2 

Sec. 549. Lien may be enforced against all owners , or a part. 
Proceedings for the recovery of the assessment, may be instituted 
against all the owners, or each or any number of them ; or, to enforce 
the lien, against all the lots or lands, or each lot or parcel, or any 
number of them embraced in any one assessment; but the judgment 
or decree shall be rendered severally or separately, for the amount 
assessed ; and any proceeding may be severed, in the discretion of the 
court, for the purpose of trial, review, or appeal. 2 


1 Act of March 11, 1853, § 14; March 31. 1864 (61 O. L. 132); February 
21, 1866 (63 O. L. 22); April 5,1866 (63 O. L. 133.) 

2 Act of 1852, $ 30: February 19,1866 (63 O. L. 18); April 21, 1868 (65 O. 
L. 104); April 5, 1866 (63 O. L. 133.) 

Where a petition asked for the sale of land and the recovery of a per¬ 
sonal judgment against the owner upon an assessment levied by the city 
for grading and paving an alley, and the defendant was served by publi¬ 
cation, Hoadly, J., delivering the opinion in General Term, said : “ As far 
as the relief sought consists in a sale of the defendant’s premises, the fact 
that the debt is less than one hundred dollars furnishes no objection to 
the jurisdiction of this court. A justice of the peace can not take cogni¬ 
zance of such a case. And where jurisdiction has been once rightfully 
acquired, full, adequate and complete relief will be furnished, even to the 
extent of providing a remedy, which, if sought alone, and in the first in¬ 
stance, the court might be incompetent to grant. Thus, in a case of the 
kind suggested, if a sale of the premises fails to produce funds sufficient 


l 



[136] 

Sec. 550. Costs in case of error or defect in proceedings. If in 
any such action it shall appear that by reason of any irregularity or 
defect, whether in the proceedings of the hoard of improvements or 
of the council, or of any other officer of the corporation, or in the 
plans or estimates, the assessment has not peen properly made against 
any defendant, or upon any lot or parcel of land sought to he charged, 
the court may, nevertheless, on satisfactory proof that expense has 
been incurred which is a proper charge against such defendant, or the 
lot, or parcel of land in question, render judgment for the amount 
properly chargeable against such defendant, or on such lot of land ; 
but in such cases the court shall make such order for the payment of 
the costs as may be deemed equitable and proper. 1 

Sec. 551. When reassessment may he ordered. Whenever it 
shall appear to the council that any special assessment is invalid by 
reason of informalities or irregularities in the proceedings, or, when 
any court of competent jurisdiction shall adjudge any such assessment 
to be illegal, the council, whether the improvement has been made or 
not, shall have power to order a reassessment. 1 

Sec. 552. Proceedings upon reassessment. All proceedings upon 
such reassessment, and for the collection thereof, shall be conducted in 
the same manner as is provided for the original assessment. 1 


to pay the debt, the plaintiff may have judgment for the residue, provided 
the action was commenced by service of process personally or at the resi¬ 
dence. But this court can not take jurisdiction of a petition which seeks 
judgment in a sum less than one hundred dollars, nor grant such relief 
originally, even in a case where other proper relief is also sought. Nor 
can we render a personal judgment in any sum whatever where the ser¬ 
vice was by publication in such a case.” Prayer of petition granted as far 
as it seeks a sale of defendant’s real estate. Bonte v. Marshall. MS. 

i Act of 1852, § 31, February 19, 1866 (63 O. L. 18); April 21,1868 (65 O. 
Jj. 104.) 

Where the corporate authorities of a city had, in pursuance of its char¬ 
ter, levied a local assessment on lots bounding on and near to certain 
streets, for the purpose of grading said streets, and, from mistake in the 
preliminary estimate of cost, and extraordinary expense attending the 
collection of said assessment, the assessment proved insufficient to dis¬ 
charge the cost and expenses, a subsequent amendment of the charter, 
authorizing a reassessment on the same lots “ sufficient in amount to meet 
said deficiency, and the cost and expenses of such reassessment, and all 
other expenses incidental to said improvements,” is not in contravention 
of any provision of the constitution of 1802, and is a valid law, binding on 
all property within its purview, although the owner may have acquired 
title intermediate the assessment and reassessment. Nor is such reassess¬ 
ment invalidated by the fact, that a small part of the fund to be supplied 
has been expended in extending the grading somewhat beyond the strict 
line of the improvement expressly authorized, and into intersecting 
streets, where such extension was necessary to afford ingress and egress 
to and from the street authorized to be graded. Butler v. Toledo , 5 O. S. 225. 

Brinlcerhoff, J., in delivering the opinion, said: k ‘It is contended that 
interest on outstanding orders ought not to be included in the amount of 
the reassessment. The contracts for the work provide that the contract¬ 
ors 4 shall be paid in warrants of the mayor of said city, and shall be paya¬ 
ble only out of the fund to be collected as aforesaid.’ But surely the con¬ 
tractors had a right to expect that the fund would be collected within 



[ 137 ] 

Sec. 553. Special duty of court of common pleas. It shall he 
the duty of the court of common pleas of the proper county, to exer¬ 
cise the jurisdiction authorized by this chapter, for the collection of 

some reasonable time; and when its collection was unexpectedly, and, 
with contractors, ruinously delayed, we think the contractors had a legal 
right to demand interest on the dishonored warrants of the city; that the 
city authorities had a legal right to allow interest; and that it is right¬ 
fully included in the reassessment, as one of the ‘expenses incidental to 
said improvement.’” 

“The same may be said in respect to other items—such as costs, attor¬ 
ney fees, printer’s bill, and compensation of city officials for superintend¬ 
ing the work, making measurements, defending suits instituted to restrain 
the collection of the assessment, and the levying and collection of the as¬ 
sessment. None of these items would have accrued had it not been for the 
improvement, and they are, we think, legitimately classed among the ‘ ex¬ 
penses incidental’ to it.” 

“And, finally, it is claimed that of the 833,096.07 of the orders drawn 
for the cost of this improvement, the sum of 81,017.58 was on account of 
work done on Summit-street, east of Elm, and on the cross streets north 
of Summit, neither of which were embraced in the terms of either the or¬ 
dinance directing the improvement or the contracts for the work. * * * 
But it satisfactorily appears in the evidence that the improvement in 
Summit-street consisted almost entirely of excavation, varying in depth 
from three to six feet; in consequence of which, and of the perpendicular 
cuttings thus made at the points of intersection with the cross streets 
north of it and with Elm-street, all ingress and egress to and from that 
part of Summit-street covered by the improvement, would have been ef¬ 
fectually barred had not the excavations been extended somewhat into 
the cross streets north of Summit, and into Summit, eastof Elm. Had the 
projected improvement been thus left, it would have been no improve¬ 
ment, but a detriment; and on the whole, we are satisfied, from the nature 
of the improvement itself, and from the small proportion of the whole 
amount expended on them, that these extensions of the excavations be¬ 
yond the strict line of the main work, were substantially and properly 
part and parcel of the main work, rather than improper and unauthorized 
departures from it.” 

In the act of April 5.1866 (63 0. L. 133), it is provided that when it shall 
be deemed necessary by the council of any city embraced in that act, to 
make the improvements therein mentioned, it shall be the duty of the 
council to declare by resolution the necessity of such improvement, which 
resolution shall be published as specified in the act, briefly describing the 
character of such improvement, and referring to the plans, etc. The act 
further provides that persons claiming damage on account of the pro¬ 
posed improvement, must file their claims with the city clerk, within two 
weeks after the publication is completed, or be taken to have waived 
them, and that “ it shall be lawful for the city council, in their discretion, 
to provide by ordinance for such ” improvement. Held, that the adoption 
of the resolution declaring the improvements necessary, and the publica¬ 
tion of the same, as required in the act, are conditions precedent to the 
exercise of the authority to pass a valid ordinance for the improvements, 
or make an assessment on the property adjoining to pay. for them. The 
failure to comply with such precedent conditions is not merely an irregu¬ 
larity or defect in the proceedings provided for in the curative portion of 
tlie act. The irregularity or defect thus provided for is such as occurs in 
the exercise of lawful authority b}^ the council. An act of the general 
assembly that operates only upon all cities in the state of the first class 
having at the last federal census less than one hundred thousand inluib- 
itants, does not contravene section 26 of article 2 of the Constitution, 



[ 138 ] 

any charge or debt, or the enforcement of any lien, notwithstanding 
the amount involved shall be less than that to which the jurisdiction 


which requires all laws of a general nature to have a uniform operation 
throughout the state. Welker v. Potter , 18 O. S. —. 

Where part only of a street is improved, thecit} r council have power to 
assess the expense of making such improvement upon the lots or land 
abutting on the part of the street improved. Under the former law, 
when, in making such improvement, squares formed by the intersection 
of other streets are crossed and improved, the city council may, if the 
object of improving the squares is the improvement of such street, assess 
the whole expense upon the same property on which the other expenses 
of such improvement are assessed. Creighton v. Scott , 14 O. S. 438. But 
compare this with § 590. 

Where a municipal corporation, by void proceedings, assess lots for 
the improvement of streets, the laborer can not sustain an action against 
the lot-owners for the amount assessed against them, but his remedy, if 
lie have any, is against the corporation. Harlech v. Connelly , 11 O. S. 
227. 

The Board of City Improvements reported an ordinance to the city 
council, providing that the road should be graded and macadamized 
“from the Avenue House to Millcreek bridge.” The city council thereupon 
passed an ordinance for the grading and macadamizing of the road 
“from the Western-avenue to the Millcreek bridge,” the expenses thereof 
to be ascertained and assessed in accordance with the general ordinances 
of the city. A contract was then entered into between the proper city 
authorities and M. & B.. to do the work, “ from Western-avenue to the Mill¬ 
creek bridge,” under the direction of the City Civil Engineer, or City 
Commissioners, who were to have entire control over the manner of doing 
the same. The work was done “ from, the east line of Western-avenue to the 
Millcreek bridge,” under the superintendence of the City Civil Engineer, 
who made an estimate of its amount and value, agreeably to the con¬ 
tract. Thereupon the city council passed an ordinance assessing the 
amount per front foot on each front foot of the several lots of land 
abutting the road “from the east line of Western-avenue to the Mill¬ 
creek bridge.” M.& 11. assigned the asssessment to plaintiffs. Held , that 
the word “from” did not necessarily exclude the avenue, although such, 
perhaps, would be_ its general construction. Still the word “from ” is 
sometimes construed inclusively , according to the intention of the parties 
using it. In this case it will be held to include the Western-avenue, as 
that construction seems to have been put upon it b y the parties them¬ 
selves. If the assessing ordinance covers more ground than has been 
improved, the plaintiff in error can not object, because it operates bene¬ 
ficially to him, and he is liable to less assessment than he otherwise 
would have been. Suppose, however, the road has, in fact, been im¬ 
proved to the eastern line of Western-avenue, while the ordinance 
requiring the improvement only ordered it to be done to the western line 
ot the avenue; this would not render the assessment wholly void ; but the 
court would fix the rule of proportion, under theactof 1852, § 31; and, as 
in this case, the rateable assessment would still appear to remain the 
same (there being no testimony on the subject, and the presumption being 
that in all matters of public duty the acts of the public officer are rightly 
clone), the court will not disturb it. Ridenour v .Saffin, 1 Handy, 4G4. 

2. If the assessment included more property than defendant owned, the 
court would charge him only on the actual number of feet owned bv 
him. 11. 

3. Where there is no fraud or collusion charged between the contractor 
and public officer, evidence will not be received to show that the work 
done was of less value than the contract price. The city stands, as it 
were, in the situation of an agent for the owners of lots who are assessed 



[139] 


of the court may be limited in other cases ; and any court of common 
pleas may make such special rules as to the class of cases authorized 


to pay for the improvements contracted for; and by her acts, they are 
bound. IK 

In February, 1865, the council of Avondale passed an ordinance giving 
the name “Rockdale-avenue” to the old township road, and adopted a 
resolution directing the Committee on Improvements to employ the Civil 
Engineer to make survey and estimate for its improvement. August 3, 
1866. an ordinance was passed for making such improvement, and de¬ 
claring the same to be necessary. This ordinance did not declare how the 
expense should be assessed, nor did it refer to any general ordinance de¬ 
termining the mode of its assessment. 

The council of Avondale, in December, 1864, passed a general ordi¬ 
nance, providing that the costs of such improvements should be assessed 
upon the abutting property, per front foot. This ordinance was in force 
when the ordinance was passed directing the improvement of Rockdale- 
avenue. 

The old township road was crooked, and Rockdal e-avenue, as estab¬ 
lished, straightened it. The grade of the road, as made by plaintiff, dif¬ 
fered, in one place, from the grade established by ordinance. The vari¬ 
ation was directed bj r the engineer, accepted by the corporation, and was, 
in fact, an improvement: and the variance was held, therefore, not to be 
so material as to affect the validity of the assessment. Strohman v. Hutch- 
ins, Hamilton Co. District Court, 1868. MS. 

2. That the general ordinance of 1864 being in force and being the law 
of Avondale when the improvement of Rockdale-avenue was directed, 
and by familiar rules, forming with it the determination of council in the 
matter, it must be supposed that the general ordinance was in the con¬ 
templation of the council at the time. And as they did not except this 
improvement from the operation of the general ordinance, it must be held 
that in this case they determined the assessment should be made in ac¬ 
cordance with the general ordinance. II. 

The city council passed a resolution to advertise for proposals to grade 
North Elm-street. Afterward they passed a resolution to readvertise, 
and among the proposals received was one from F. The council then 
passed a resolution in these words: “ Resolved, That the clerk contract 
with F. for the grading of North Elm-street, from Vine-street to the north 
corporation line, for the sum of sixteen cents per cubic yard.” 

The contract was entered into and the work done. Council then passed 
an ordinance assessing the cost of the grading on the feet front of the 
property bounding on the street. Held , that as there was no ordinance 
passed directing the improvement to be made, and determining that the 
cost would be assessed on the owners of the property, there was not a 
sufficient compliance with the law to authorize council to assess the cost 
on the owners of the property. But that the plaintiff was entitled to 
recover from the city for the work done. 

An informality, irregularity, or defect which it was the intention of 
section 31 to cure, must be considered rather an omission or neglect of 
something of a ministerial than of a legislative character. Folz v. Cincin¬ 
nati . 2 Handy, 261. 

Where it appeared that in the contract for grading and paving a street 
there was a clause by which the city required the contractors to remove 
the earth to the water-works’ lot, for the improvement of that property: 
Held . that the contract was indivisible, and the city had no right to make 
the assessment on the front foot. The city could not attempt to get an 
indirect benefit for herself, and reap the fruit, by showing that the lot- 
owners were not injured by it. It would be an improper course, in the 
administration of justice, to permit the city to exert an extraordinary 
power against the consent of the property owners, and charge the whole 




[140] 

to be brought under this chapter, as will tend to expedite their dispo¬ 
sition, and prevent unnecessary costs. * 1 

Sec. 554. Certificate and collection of unpaid assessment. The 
council may order the clerk or other proper officer of the corporation 
to certify under his official seal any unpaid assessment or tax to the 
auditor of the county in which the corporation is situated, and the 
amount of such assessment or tax so certified shall be placed upon the 
grand tax duplicate of the county by the county auditor, and shall 
with ten per cent, penalty, to cover the interest and expense of col¬ 
lection, be collected with and in the same manner as state and county 
taxes, and credited to the corporation. 2 

Sec. 555. Payment and application of assessments. All assess¬ 
ments placed upon the duplicate of the county under the provisions of 
this chapter, shall, when collected, be paid to the treasurer of the cor¬ 
poration, and shall be applied by the council only for the purposes of 
the improvement for which they were made. 

Sec. 556. Duration of lien , etc. The lien of any such assess¬ 
ment shall continue for the term of two years from and after the time 
the same is payable and no longer, unless the corporation shall, before 
the expiration of such time, have caused the same to be certified to the 
auditor of the proper county, for entry upon the tax duplicate for col¬ 
lection, or shall have caused the proper action to be commenced in 
some court having jurisdiction thereof, to enforce such lien against 
such lots or lands; in which case the lien shall continue and be in 
force so long as such assessment shall remain on the tax duplicate un¬ 
collected, or so long as such action shall be pending, and any judg¬ 
ment obtained under and by virtue thereof, shall remain in force and 
unsatisfied. 3 

Sec. 557. Where new action may he commenced. If an action 
be commenced within due time, and a judgment therein for the plain¬ 
tiff be reversed, or if the plaintiff fail in such action otherwise than 
upon the merits, and the time limited for the same shall have expired, 
a new action may be commenced within one year after such reversal or 
failure. 3 

Sec. 558. Collection of assessment in advance. The council may, 


expense upon them. Lowden v. Miller , Hamilton County District Court. 
MS. 

Where a petition was presented to the trustees of a special road district, 
asking for a street to be graded thirty feet wide and macadamized fifteen 
feet wide, and the trustees thereupoirgraded the street sixty feet wide and 
macadamized sixteen feet wide: Held, that the judgment should be 
against the property holders for only one-half the grading and fifteen 
feet of the macadamizing, and against the incorporated village for special 
purposes for the other half of the grading and one foot of the macadam¬ 
izing. Carry v. Bucldey, Hamilton County District Court. MS. 

1 Act of 1852, $ 33. 

2 Act of March 11,1853, § 15, as amended April 17, 1857; February 21, 
1866; 63 O. L. 22. 

3 Act of March 29,1867; 64 O. L. 75. 



[141] 

if they deem expedient, cause the assessments to be collected before 
the work is done or contracted for. 1 

Sec. 559. As to deficiency or excess of assessment. Should any 
assessment prove insufficient to pay for the improvement and expenses 
incident thereto, the council may, under the limitations prescribed for 
such assessment, make an additional pro rata assessment to supply such 
deficiency ; and in case a larger amount shall have been collected than 
shall prove necessary, the same shall be returned to the persons from 
whom it was collected, in proportion to the amounts collected from 
such persons respectively. 1 

Sec. 560. As to change of grade , after being, once established. 
Whenever any street, alley, public highway, wharf or landing, within 
the corporation, shall have been graded, or pavements shall have been 
constructed in conformity to grades established by the authorities of the 
corporation, and the expense thereof shall have been assessed on the 
lots or lands bounded .by or abutting upon such street, alley, public 
highway, wharf or landing, the owner or owners of such lots or lands 
shall not be subject .to any special assessment occasioned by any sub¬ 
sequent change of grade in such pavement, street, alley, public high¬ 
way, wharf or landing, unless such change is asked for by a majority 
of the owners of such lots or lands, but the expense of all improve¬ 
ments occasioned by such change of grade shall be chargeable to the 
general fund of the corporation. 2 

Sec. 561. As to added territory. The provisions of chapters forty- 
nine and fifty shall embrace territory added to the corporation at any 
time by annexation or otherwise. 

Sec. 562. Proceedings in making improvements or repairs. 
When the corporation shall make any improvement or repair, provided 
for in this chapter and in chapters forty-nine and fifty, the cost of 
which will exceed five hundred dollars, it shall proceed as follows : 

1. It shall advertise for bids for the period of four weeks in some 
newspaper in general circulation in said corporation, and two, if there 
are so many; and if no newspaper is published therein, then by post¬ 
ing up such advertisement in three public places therein ; which adver¬ 
tisement shall be entered in full on the journal of the corporation. 

2. The bids shall be filed with the clerk, sealed up, by 12 o’clock 
at noon of the last day as stated in the advertisement. 

3. The bids shall be opened at the next regular meeting of the 
council, and publicly read by the clerk and entered in full on his 
journal. 

4. Each bid shall contain the full name of every person interested 
in the same, and shall be accompanied by a sufficient guaranty of some 
disinterested person, that if the bid is accepted a contract will be en¬ 
tered into, and the performance of it properly secured. 


1 Act of February 9,1863 (60 O. L. 6); May 1,1864 (61 O. L. 48); Feb¬ 
ruary 19, 1866 (63 O. L. 18); April 8,1856 (4 Curwen, ch. 1632.) 

2 Act of April 16,1867; 64 O. L. 215. 



[ 142 ] 

5. If the work hid for embraces both labor and materials, each must 
be separately stated with the price thereof. 

6. None but the lowest responsible bid must be accepted, when 
such bids are for the labor or materials separately; but the council 
may, in its discretion, reject all the bids, or it may, in its discretion, ac¬ 
cept any bid for both labor and material, which shall be the lowest 
aggregate cost of such improvement or repairs. 

7. Any part of a bid which is lower than the same part of any 
other, shall be accepted, whether the residue of the bid is higher or 
not, and if it is higher, such residue shall be rejected. 

8. The contract shall be between the corporation and the bidder, 
and the corporation shall pay the contract price for the work, when it 
is completed, in cash. 

9. If two or more bids are equal in the whole or any part thereof, 
and are lower than any others, either may be accepted, but in no case 
shall the work be divided between them. 

10. When there is reason to believe that there is any collusion or 
combination among the bidders, or any number of them, the bids of 
those concerned therein shall be rejected. 1 


CHAPTER XLIX. 

DAMAGES AND ASSESSMENTS FOR PUBLIC IMPROVEMENTS. 


Section. 

5G3. Publication of notice of proposed im¬ 
provement. 

664. Filing claims for damages. 

665. Determination of council as to claims 

for damages. 

566. Jury to assess damages. 

567. Proceedings of jury. 

668. Finding final. 

669. Costs of inquiry. 

670. Assessment of damages after completion 

of improvement. 

571. Assessment of damages in special cases. 

672. Oath of assessors of damages. 

673. Duty of assessors of damages. 

574. Costs in certain cases. 

675. Time allowed for proceedings. 

576. How costs for improvements shall be 

assessed. 

577. Payable in one or more installments. 

678. Ordinance to specify time of payment. 

679. Assessment on lots not abutting on 

improvement. 

580. As to costs for repaving streets, etc. 

681. When costs may be raised by general 

levy. 

682. Such levy to be certified to county au¬ 

ditor. 


Section. 

583. Damages for land appropriated. 

584. Report of estimate of assessments. 

585. Notice of assessment to be published. 

586. Objections to assessments to be filed, etc. 

587. Duties of equalizing board. 

588. Confirmed assessment final. 

589. Concurrence of two-thirds requisite. 

590. As to costs for street crossings, etc. 

591. Provision for sidewalks. 

592. Notice to be served on owners, etc. 

593. Construction of sidewalks to turnpikes, 

etc. 

594. Construction of sidewalks on one side 

only. 

595. Exemption from taxation in certain 

cases. 

596. Cost of sidewalks along wharves, parks, 

etc. 

597. Cost of turnpikes, etc., owned or con* 

trolled by corporation. 

598. Remedy for neglect of corporation to 

keep roads in repair. 

599. Adaptation of turnpikes to corporation 

improvements, etc. 

COO. Right of toll not to be impaired. 

601. Cost of constructing, etc., water-cour¬ 
ses. 


I .—Notice of Proposed Improvement . 

Sec. 5b 8 . Publication of notice of proposed improvement. 
When it shall be deemed necessary, by any city or incorporated vil- 


1 Original. 





[143] 


lage, to make any public improvement not otherwise specially pro¬ 
vided for, it shall be the duty of the council to declare, by resolution, 
the necessity of such improvement, and to publish such resolution for 
four consecutive weeks in some newspaper published or of general 
circulation in the corporation, briefly describing the character of the 
proposed improvement, and referring to the plans and profiles thereof. 1 2 

II.— Claims for Damages? 

Sec. 564. Filing claims for damages. Any owner or owners of 
lots or lands bounding or abutting upon the proposed improvement, 
claming damages therefor, shall file a claim, in writing, with the clerk 
of the corporation, setting forth the amount of damages claimed, to¬ 
gether with a description of the property owned for which the claim 
is made, within two weeks after the expiration of the time required 
for the publication of said notice ; and all such owners as shall fail or 
neglect to file their claims for damages aforesaid, within the time 
aforesaid, shall be deemed to have waived the same, and be forever 
barred from filing any claim or receiving any damages therefor. 1 

Sec. 565. Determination of council as to claims for damages. 
Upon the expiration of the time limited for filing claims for damages 

1 Act of February 21, 1866 (63 O. L. 22); April 5, 1866 (63 O. L. 133): 
March 31, 1864 (61 O. L. 132); March 20, 1866 (63 O. L. 42.) 

2 In Smith, v. Cincinnati, 4 O. 514, tlie principle was established, that 
where a party makes improvements on his lot, with an express view to 
the level and grade of the street as established by authority of the city, 
and the grade of the street is afterward changed by authority of the city, 
to the injury of the walls, etc., of the party making the improvements, 
the paidy injured may recover from the city damages to the extent of the 
injury, although the corporation may have acted within the scope of its 
authority, and without malice. The same principle was applied to a case 
where the value of such improvements was depreciated by reason of the 
change. McComb v. Akron , 15 0. 474; Akron v. Me Comb, 18 O. 229. And, 
speaking of a case of that kind, in Crawford v. Delaware, 7 O. S. 459-471, 
the court say: “ It comes not within the letter, but manifestly within the 
spirit, of the provision of the Constitution, which requires compensation 
for property taken for public use.” There it was held, that the owners 
of unimproved lots can not recover damages from a municipal corpora¬ 
tion for tilling, ditching or cutting down streets, being presumed to pur¬ 
chase with a view to a reasonable improvement of the streets. And 
that the owners of lots upon a street, the grade of which has not been 
established, must use reasonable care and judgment in making improve¬ 
ments with a view to a reasonable and proper grade; and the town or city 
will not be responsible for injuries to such improvements by afterward 
grading the street, if the grade, by ordinary care, could have been antic¬ 
ipated. But that if erections are made on a lot in accordance with an 
established grade, and the grade is afterward altered, and a substantial 
injury is thereby done to the owner of the lot, he is entitled to compen¬ 
sation. And that principle has been repeatedly reaffirmed. Beeves v. 
Treasurer , etc., 8 O. S. 333-347 ; Western Col. v. Cleveland, 12 O. S. 375-378; 
Cincinnati & S. G. A. Street R. Co. v. Oumminsville, 14 O. IS. 523-546; Jackson 
v. Jackson, 16 O. S. 163-168. 

Where an act confers authority on a city or village to improve streets, 
and provides the mode of rendering satisfaction or obtaining compensa¬ 
tion, that mode must be pursued, and an action can not be maintained, 



[ 144 ] 

as above provided, the council shall determine whether they will pro¬ 
ceed with the proposed improvement or not ; and also whether the 


unless that be the mode provided. Hickox v. Cleveland , 8 O. 543; Cincin¬ 
nati v. Coombs , 10 O. 181-188; Akron v. Me Comb, 18 O. 229-232; Haeston v. 
Eaton & II. R. R. Co., 4 O. S. 685; Little M. R. R. Co. v. Whit acre , 8 O. S. 590. 

“ All corporations act by agencies, and those agencies are composed of 
men who may be influenced by reprehensible motives, or tempted to do 
acts not warranted by law. In this case, the act is charged in the declar¬ 
ation to have been illegal and malicious. When a corporation acts ille- 
gall}' and maliciously, we conceive it ought to be made directly respon¬ 
sible. Such is the plain dictate of justice, and we see no technical rule of 
law that forbids us to act upon it." Coodloe v. Cincinnati , 4 O. 500-514. 

So, municipal corporations are liable for injuries to third persons, re¬ 
sulting from the negligence of subordinate officers or agents acting under 
their authority and direction in the construction of public improvements 
belonging to such corporations. Dayton v. Pease . 4 O. S. 80. 

But where an action was brought, not against the corporation, but per¬ 
sons acting under the authority of trustees of the town, for an injury to 
a lot, sustained by an individual from gradinga street, it was held, that the 
defendants were not responsible individually for doing what the trustees 
were authorized by law to do, in any form of action. Scovill v. Geddings, 

7 0.2 pt. 211. 

If damages are sustained by the owner or occupant of land, by reason of 
the grading of a street, the city is liable to the party injured, and the 
statute provides a remedy which may be pursued in such case, but until 
a claim for such damages is tiled with the clerk of the city, and sixty 
days thereafter shall have elapsed without any steps being taken by the 
city to assess the damages, an action will not lie against the city or its 
agents to recover for such injury. Ernst v. KunJcle, 5 O. 8. 520. 

A contract made by the city with K. and R., to grade and macadamize 
one of its streets, may be legall}' assigned to other parties, although the 
assessment for such grading was made by the city to pay Iv. and R.; and 
a suit may, after the completion of the work, be sustained by such as¬ 
signee to recover the assessment. Ib. 

Municipal corporations are subject to the operation of the statute of 
limitations, in the same manner and to the same extent as natural per¬ 
sons; and, therefore, notorious and uninterrupted possession for more 
than twenty-one years, by a private individual, under a claim of right, of 
land dedicated to a city for streets or public squares, will bar the claim 
of the city to its use. [The case of Cincinnati v. The Presbyterian Church. 

8 O. 29S; approved and affirmed.] Cincinnati v. Evans, 5 O. S. 594. 

In an action of trespass for an injury to a building occupied by the 
plaintiff as a store, resulting in an interruption of his business, he may 
recover, in addition to the damages done to the building, such further 
sum as will compensate him for the loss of its enjoyment while such 
interruption continued. Ib. 

For this purpose it is competent to prove the nature and extent of the 
business, thepiecessity of using the building lor its prosecution, and the 
value of such use to him during the period of interruption. Ib. 

But in the absence of fraud or malice, or other circumstances justify¬ 
ing the recovery of exemplary damages, the amount of profits which 
might have been realized by employing his personal services and capital, 
in the prosecution of his business in the injured building during such 
interruption, can not be recovered. Ib. 

In such case, the loss of profits does not furnish a proper rule for esti¬ 
mating the damages; but the loss of the use of the property, and the 
Value of such use to the injured party, is all that can be recovered, lb. 

If the city, in constructing sewers, drains, or streets, increases the 
water-shed, or by other means brings a larger quantity of water than 



[ 145 ] 


claims for damages, filed as aforesaid, shall he judicially inquired into 
as hereinafter provided, before commencing or after the completion of 


before flowed to a given point, or in a given time, it must make provi¬ 
sion to carry it off, and if it does not, it is responsible in damages for the 
result. Darst v. Cincinnati , Hamilton County District Court. MS. 

In an action against the city to recover damages, wherein it appeared 
that the plaintiff was the owner of a lot on Main-street, running back to 
Bank-alley, and the city had constructed a sewer under the alley, and in 
the execution of this work the wall of the plaintiff, which was eleven feet 
below the surface, and built on a line with the alley, was rendered unsafe, 
the plaintiff was not permitted to recover. Judge Taft said : “So far back 
as Goodloe v. Cincinnati , 4 O. 500, it was decided that where a municipal 
corporation maliciously dug or excavated to the damage of a lot-owner, 
it was liable to pay for that damage; and in the same volume ( Smith v. 
Cincinnati , 4 O. 51*4) it was held, that where the act was illegal, though not 
malicious, the corporation should pay for the injury. In Scovill v. Ged- 
dings, 7 O. 2 pt. 211, it was held, that where the damage was occasioned by 
an agent, acting under the authority of a corporation which had power to 
do the act, the agent was not liable, but the corporation was. In Rhodes 
v. Cleveland , 10 O. 159, it was decided that a corporation, though having 
the right to dig ditches and make streets, was liable, in its corporate ca¬ 
pacity, in case of damage, the same as would be an individual owner of 
adjoining property. In McCombs v. Alcron , 15 O. 474, the court reversed a 
decision of the court below, where it was held, in a case of the kind, that 
the city, acting within the sphere of her corporate capacity, was not lia¬ 
ble ; and that decision was affirmed, IS O. 229. The courts in other states 
conformed to the English rule, and regarded the position taken by the 
Ohio judges as untenable. Our courts replied that, although by the Eng¬ 
lish law parliament is omnipotent, and may establish a rule of that kind, 
yet, by our constitution and government, no private property can be 
taken without compensation; that where, for instance, the peculiar right 
a man has in a street before his own property is injured bj r a change of 
an established grade, we virtually take away his property, and should pay 
for it. The courts of New York, referring to the decisions in Ohio, have 
spoken of them as law nowhere else. Our Supreme Court, stimulated to 
defend itself, again took up the question in Crawford v. Delaware , 7 O. S. 
459, reviewed all the authorities, and specially the principle before recog¬ 
nized in 10 0.157, detining it and reasserting it with great clearness; and 
finally, in Cincinnati &, S’. G. A. R. Co. v. Cumminsville , 14 O. S. 523, they 
established, after much consideration, that the city, or other corporation, 
like an individual, shall be responsible for consequential damages,- al¬ 
though it is acting within the scope of its powers. It will be observed 
that the principle determined in the latter case relates to the property an 
owner has in the street peculiar to himself, the right of access to his dwell¬ 
ing, which is taken away by a change of grade, or by a street car running 
to the curb ; and that for the appropriation of the easement or right, the 
owner has a right to be paid. Here is also a case where the city is acting 
within the compass of her power, it is not complained that she did this 
act wrongfully, or that there was a want of care in putting the sewer 
down; nor does she change the grade or take away the property by 
condemnation. But the depth of the excavation undermines the wall of 
the party who bounds on the alley and interferes with his improvements. 
Now, what rule are we to observe in such a case as between the city and 
the private individual? The point in 10 0.159 was, that where a city so 
formed its ditches as to throw the water over on a private individual, the 
latter would have the same right to recover as he would against an ad¬ 
joining lot-owner. At first it had occurred to the court that the present 
case would fall under the line of decisions to which allusion has been 
made; but we have come to the conclusion there is a distinction, and that 




[146] 

the proposed improvement; and if they shall decide to proceed there¬ 
with, they shall then provide, by ordinance, for the same. 

Sec. 566. Jury to assess damages. Upon the passage of such or¬ 
dinance providing for making the improvement, it shall he the duty 
of the mayor of the corporation, in cases where claims for damages 
have been filed within the time above limited, and the council shall 
have determined to have the damages assessed before commencing the 
improvement, to make written application to the probate judge ot the 
county within which the corporation is situated, to summon a jury of 
twelve disinterested freeholders, resident within the corporation, to as¬ 
sess the amount of damages in each particular case where claims have 
been filed as aforesaid ; and it shall be the duty of such probate judge 
to direct the summoning of a jury as aforesaid, in the manner pointed 
out in chapter forty-seven, and fix the time and place for the inquiry 
and assessment of such damages. 1 

Sec. 567. Proceedings of jury. The jury shall be sworn to in¬ 
quire into and assess the actual damages in each case separately, under 
such rules and instructions as shall be given them by the court, and 
when the jury can not agree they may be discharged, in the discretion 
of the court, and a new jury summoned, which shall be sworn as 
aforesaid. 1 

Sec. 568. Finding final. The finding of the jury shall be final, 
and there shall be no appeal. 1 

Sec. 569. Costs of inquiry. In all cases in which the jury shall 
find no damages, the costs of the inquiry shall be taxed against the 
claimant, and be collected on execution. In all other cases the court 
shall furnish to the clerk of the corporation, on application, the 
amount of damages and costs in each case. 1 

Sec. 570. Assessment of damages after completion of improve¬ 
ments. In all cases, when the council shall have determined to assess 
the damages after the completion of any improvement provided for by 
this act, for which claims for damages have been filed as heretofore 
provided, it shall be the duty of the mayor, within ten days after the 
completion of such improvement, to make written application to the 
probate judge of the county to summon a jury in the manner pointed 
out in chapter forty-seven, to assess the amount of damage in each 
particular case where claims have been filed as aforesaid ; and it shall 
be the duty of such probate judge to fix the time and place for the in- 


we must decide against the plaintiff, on the principle of holding the city 
as the owner of the street, and the plaintiff as the owner of the lot adjoin¬ 
ing, and that where one adjoining owner excavates on his own property 
so as to undermine the soil of the property next to him, he will be liable, 
if the property of his neighbor is in its natural state, and is thereby in¬ 
jured ; but if the neighboring property has been loaded by improvements, 
and these improvements are considered as contributing to the injury, it is 
held that there is no right of recovery.” Boylan v. Cincinnati, Superior 
Court of Cincinnati. MS. 

i Act of February 21, 1866 (63 O. L. 22); April 5,1866 (63 0. L. 133.) 



same 


[147] 

quiry and assessment of damages, and lie shall proceed in the 
manner as above provided. 1 

Sec. 571. Assessment of damages in special cases. Where, by 
reason of any defect or omission, in the proceedings herein provided 
for, the corporation shall be liable in an action for damages to any lot 
or land, occasioned by making any improvement; such damages shall 
be ascertained and assessed by three disinterested freeholders of the 
corporation, to be appointed by the council. 2 

Sec. 572. Oath of assessors of damages. The assessors, before 
entering upon their official duties, shall take and subscribe an oath 
before a justice of the peace, or mayor, that they will well and truly, 
to the best of their knowledge and ability, appraise the damages which 
the claimants shall have suffered by reason of such improvement, and 
for which the corporation is liable; which oath shall be filed in the 
office of the clerk. 3 

Sec. 573. Duty of assessors of damages. They shall, within 
thirty days after their appointment, make said assessment, and file the 
same in the office of the clerk, where it shall be subject to the inspec¬ 
tion of all claimants for damages, and all such damages shall be paid 
out of the corporation treasury, and within twenty days thereafter 
shall be by the treasurer paid or tendered to the party in whose favor 
the same were assessed. 3 

Sec. 574. Costs in certain cases. If any person shall neglect or 
refuse to accept the amount so assessed, and shall prosecute the corpo¬ 
ration, and shall not recover more than the amount allowed by said 
assessors, such party shall pay all costs of suit. 

Sec. 575. Time allowed for proceedings. No claimant for dam¬ 
ages shall commence any suit until he shall have filed a claim therefor 
with the clerk of the corporation, and sixty days shall have elapsed 
thereafter, to enable such corporation to appoint assessors to assess 
such damages, return the same to the proper officers, and sufficient 
further time shall have elapsed, not exceeding twenty days after the 
return of such appraisal, to enable the corporation to pay the assess¬ 
ment. 3 

III. —Special Assessments. 

Sec. 576. How costs for improvements shall be assessed. For 
the payment of the costs of making said improvements, the council 
may, by ordinance, levy and assess a tax on all the lots or lands bound¬ 
ing or abutting on the proposed improvement, such tax to be either 
in proportion to the foot front of the lot or lands so bounding or abut¬ 
ting, or according to the value of such lot or lands as assessed for tax¬ 
ation under the general law of the state, as may be equitable and as 
the council may in each case determine. 4 


1 Original. 

2 Act of May 1,1854, 4 Curwen, ch. 1511. 

s Act of May 1,1854. 

4 Act of 1852, § 30; § 26, as amended/May 1,1858; April 5, 1866 (63 O 



[148] 

Sec. 577. Payable in one or more installments. The amount as¬ 
sessed may be made payable in one installment, or in such number of 
annual installments as the ordinance shall provide. 

Sec. 578. Ordinance to specify time of payment. If the coun¬ 
cil shall determine that the costs and expense of the improvements 


L. 133); May 13,1868 (65 O. L. 187); February 19,1866 (63 O. L. 18); March 
28,1864 (61 O. L. 71); March 11, 1853, § 14. 

See, ante, § 550, and note. 

An action can not he maintained to recover back money paid with full 
knowledge of the facts, in discharge of an assessment made by a munici¬ 
pal corporation. 

Where payment of a demand can not be enforced without giving the 
party against whom it is asserted a day in court, and there is no duress 
of his person or property, its payment, though made under protest, is, in 
law, a voluntary one. Marietta v. Slocomb , 6 O. S. 471; Mays v. Cincinnati , 
1 O. S. 268. But see BaJcer v. Cincinnati , 11 O. S. 534. 

Section 26 of the act of 1852, as amended March 11,1853, authorizing the 
city council to assess the expense of improving a street, upon the lots or 
lands abutting thereon, in proportion to the feet front of said lots or lands, 
is not unconstitutional. Northern Ind. R. R. Co. v. Connelly , 10 O. S. 159. 

The assessment, whether by the front feet or upon the value assessed for 
taxation, must be uniform, operating alike upon all the lots or lands so 
abutting; and the fact that one or more of the tracts may not have been 
benefited by the improvement, will not render such assessment invalid. 
II. 

Lands appropriated by a railroad company for its track through a city, 
and crossing the improved street at right angles, and upon which the 
track was constructed after the work had been completed, is liable to 
such assessment, lb. 

As between the railroad company and the person performing the work 
(whatever may be the rights of bona fide mortgagees of railroad), the lands 
so appropriated may be sold to pay such assessment, lb. 

The land appropriated for a railroad track within a city, and occupied 
exclusively for that purpose, is land within the meaning of section 26 of 
said act. Ib. 

A general ordinance of the city that assessments shall be by the front 
foot, is legal. And when afterward a special ordinance is passed, pro¬ 
viding that a particular assessment shall be according to the general ordi¬ 
nances, this is simply specifying the mode of assessment, as the council is 
authorized to do. Hanbold v. Barton , Hamilton County District Court. MS. 

Legislation authorizing cities and villages to levy special assessments 
for the purpose of improving streets, upon real estate peculiarly and spe¬ 
cially benefited, and in proportion to such benefit, is not repugnant to any 
provision of the Constitution. Hill v. Higdon , 5 O. S. 243; Marion v. Ropier. 
5 O. S. 250; Ernst v. Kunlcle , 5 O. S. 520. 

Suit was brought to recover the amount of an assessment for grading 
and paving with bowlder pavement in front of defendant’s property. De¬ 
fendant averred that he improved the street before it came under control 
of the city, and that plaintiffs used the curbstones, and other materials on 
the street, without any allowance to defendant for them; and that the 
ordinance directing the assessment did not provide specifically that the 
assessment should be made by the front foot of the lots abutting on the 
street, but provided that the cost should be ascertained and assessed ac¬ 
cording to the provisions of the acts of the legislature and the ordinances 
of Cincinnati upon the subject of special taxes. It was admitted that 
there was a general ordinance, enacted several years previously, pro¬ 
viding for assessments by the front foot, unrepealed. 

Held, that the defendant was not entitled to receive anything for the old 



[149] 

shall be payable on the completion of the same, the ordinance shall 
specify the time when the assessment shall be paid. 

Sec. 579. Assessment on lots not abutting on improvement. If, 
in the opinion of the council or board of improvements, the same 
would be equitable, a proportion of the cost of making the improve¬ 
ment may be assessed as herein provided, upon such other lots or 
lands within the corporation, not bounding or abutting upon the im¬ 
provement, as will, in the opinion of the council or board, be specially 
accommodated and benefited thereby; and said board or council shall 
fix the amount to be so assessed. * 1 

Sec. 580. As to costs for repaving streets, etc. Whenever, in 
the opinion of the council, it shall be deemed necessary to repave any 
street, alley or public highway, the grade remaining unchanged, and 
the cost and expense thereof having been paid by the abutting prop¬ 
erty, it shall be lawful for the council to provide therefor in accordance 
with the provisions of this chapter ; and whenever in the opinion of the 
council the same would be just and equitable, they shall have power 
to provide for the payment of one-half of the cost and expense of re¬ 
paving such street, alley or public highway, by levying and assessing 
upon the general duplicate of all the real and personal property sub¬ 
ject to taxation within the limits of the corporation, an amount suf¬ 
ficient to pay one-half the estimated cost and expense of said improve¬ 
ment, and the said amount shall be certified and entered upon the gen¬ 
eral duplicate and collected the same as provided in chapter forty- 
eight. 2 3 

Sec. 581. When costs may be raised by general levy. If, in the 
opinion of council or board of improvements, it would be equitable, the 
whole or a proportion of the cost of the improvement as may be fixed by 
the council or board, may be raised by the levy and assessment by the 
council of a tax upon the general duplicate of all the real and personal 
property subject to taxation within the limits of the corporation; 
which levy and assessment shall be certified, charged and collected as 
provided in chapter forty-eight. 5 

Sec. 582. Such levy to be certified to county auditor. When¬ 
ever the whole or any portion of any improvement authorized by this 
act shall pass by or through any public wharves, market-spaces, parks, 
cemeteries, public grounds, structures for the fire department, for wa- 


material. The street and the materials on it belonged to the city, and not 
to the owners of property abutting on it. The materials in the street 
were as much dedicated to the city as the land itself. 

That it is not necessary to declare in each preliminary ordinance that 
the assessment is to be by the front foot. But under the laws and ordi¬ 
nances in force, all assessments for grading and paving streets are made 
by the front foot, unless the city council choose to declare a different rule, 
and that this is fully and lawfully determined by general ordinance. Rey¬ 
nolds v. Hammond , Superior Court of Cincinnati, General Term. MS. 

1 See note 4, ante, p. 147. 

2 Original. 

3 Act of March 11,1853. 



[150] 

ter-works, school buildings, infirmaries, market buildings, work- 
houses, hospitals, houses of refuge and correction, gas-works, public 
prisons or any other public structure within the limits of and belong¬ 
ing to such municipal corporation, it shall be lawful for the council 
to authorize the proper proportion of the estimated cost of such im¬ 
provement to be certified to the county auditor, and entered for taxa¬ 
tion upon the general duplicate of all the real and personal property 
subject to taxation within the limits of the corporation. 1 

Sec. 583. Damages for lands appropriated. Where any part of 
any lot or parcel of land is taken or appropriated for any street, alley 
or other highway, or public improvement, the damages assessed to the 
owner therefor shall be certified and entered for taxation on the gen¬ 
eral duplicate, and collected as provided in the preceding section. 1 

Sec. 584. Deport of estimate of assessments. In all cases in 
which it is determined to assess the whole or any part of the cost of 
any improvement upon the lots or lands bounding or abutting upon 
the same, or upon other lots or lands benefited thereby, the council 
may require the board of improvements, or may appoint three disin¬ 
terested freeholders of the corporation, or vicinity, to report to the 
council an estimated assessment of such cost on the lots or lands to 
be charged therewith, in proportion, as nearly as may be, to the ben¬ 
efits which may result from the improvement to the several lots or 
parcels, of land so assessed, a copy of which assessment shall be filed 
in the office of the clerk of the corporation for public inspection. 2 

Sec. 585. Notice of assessment to be published. Before adopt¬ 
ing the assessment so made, the council shall publish notice for three 
weeks consecutively in some newspaper of general circulation in the 
corporation, that such assessment has been made, and that the same is 
on file in the office of the clerk for the inspection and examination of 
any person interested therein. 3 

Sec. 586. Objections to assessments to be fled, etc. Any person 
objecting to such assessment shall file his objections, in writing, with 
the clerk within two weeks after the expiration of said notice ; and 
thereupon the council shall appoint three disinterested freeholders of 
the corporation to act as an equalizing board. 3 

Sec. 587. Duties of equalizing board. On the day appointed by 
the council for that purpose, the said board, after taking an oath 
before the mayor or other proper offieer, honestly and impartially to 
discharge their duties, shall hear and determine all objections to the 
assessment, and shall equalize the same, as they shall think proper ; 
which equalized assessment they shall report to the council, who shall 
have power to confirm the same, or set the same aside and cause a new 
assessment to be made, and appoint a new equalizing board possessing 


* Act of February 19,1866 (63 O. L. 18); March 28, 1864 (61 O. L. 71.) 

2 March 31. 1864 (61 O. L. 132); March 20.1866 (63 O. L. 42); April 5, 
1866 (63 O. L. 133); February 11,1866 (63 O. L. 18.) 

3 Act of March 31,1864; March 20, 1866; April 5,1866; February 
1866; May 15,1868. 



[151] 

the same qualifications, who shall proceed in the same manner above 
provided. 1 

Sec. 588. Confirmed assessment final. When such assessment is 
confirmed by the council the same shall be complete and final. 1 

Sec. 589. Concurrence of two-thirds requisite. A concurrence 
of two-thirds of the members of the council shall be necessary in ap¬ 
pointing the equalizing hoard, and in confirming their assessment. 1 

Sec. 590. As to costs for street crossings, etc. Whenever the 
council shall determine to grade, pave, or otherwise improve any street, 
alley, or other highway, and such improvement crosses or intersects 
any other street, alley or other highway, the council shall levy and as¬ 
sess a tax upon the general duplicate of all the real and personal prop¬ 
erty subject to taxation within the limits of the corporation, for the 
amount of the estimated cost of so much of such improvement as may 
he included and contained in the crossing or intersection of such street, 
alley, or other highway, to he by the clerk certified to the auditor of 
the proper county, and by the auditor charged in said duplicate 
against said taxable property and collected as other taxes. 1 

IV.— Sidewalks. 

Sec. 591. Provision for sidewalks. The council shall provide by 
ordinance for the construction and repair of all necessary sidewalks 
within the limits of the corporation. 2 

Sec. 592. Notice to he served on owners, etc. Whenever the 
council or board of improvements declare, by resolution, that certain 
specified sidewalks should he constructed or repaired, the mayor, upon 
being advised thereof, shall cause a notice to he served upon the owner 
or owners, or agent of the owner or owners of the property bounding 
or abutting on such sidewalk, of the passage of such resolution, and 
if such sidewalks are not constructed or repaired within sixty days 
from service of such notice, the council or board of improvements may 
have the same done at the expense of the owner or owners thereof, 
and such expense shall constitute a lien upon the property bounding 
or abutting thereon, and shall be collected in the same manner and 
with like penalty and interest after demand and non-payment as in 
other cases of improvement. 2 

Sec. 598. Construction of sidewalks to turnpikes , etc. The 
council or trustees of any municipal corporation, through or into 
which any turnpike or plankroad passes or enters, may, with the con¬ 
sent of the authority having control or direction thereof, cause to be 
constructed on the sides of such road, sidewalks not exceeding twelve 
feet in width, and gutters for the passage of water; and may also 

1 See note 3, ante, p. 150. 

2 Act of February 13,1853, § 17; February 21,1866; 63 O. L. 22. 

It is no violation of the Constitution for the general assembly to provide 
in the charter of a town that the town council may impose the duty of 
making sidewalks upon the lot-owners, and if any one neglect to perform 
the duty, the council may cause the work to be done for him, and assess 
the amount expended as tax upon the lot. Bonsall v. Lebanon , 19 0. 41fi. 



[152] 

cause the same when constructed to he kept in proper order and repair, 
and the council or trustees shall have power and authority, for the 
purpose of the construction or repair of such sidewalks or gutters, to 
assess and collect the charges and expenses thereof on the owners of 
lots and lands abutting on such road, and to supervise and control the 
said sidewalks and gutters in all respects as if said road were a street 
of the corporation. 1 

Sec. 594. Construction of sidewalks on one side only. If the 
board of improvements, council or trustees of any municipal corpora¬ 
tion, shall deem it necessary to construct a sidewalk on one side only 
of any street, alley, turnpike or plankroad, with proper crossings from 
one side to the other, it shall be lawful to assess and collect the charge 
for constructing or repairing such sidewalk and crossings on the own¬ 
ers of the lots or lands abutting on both sides of such street, alley or 
road, in like manner as if said sidewalk had been constructed on both 
sides; but after a sidewalk shall have been so constructed, and the 
charge therefor so assessed, if it shall be deemed necessary to con¬ 
struct a sidewalk on the other or corresponding side of any such street, 
alley or road, the charge therefor shall also be assessed on the owners 
of the lots and lands on both sides. 2 

Sec. 595. Exemption from taxation in certain cases. Nothing in 
this chapter shall be so construed as to tax property for the purpose of 
constructing any sidewalk the owners of which have already con¬ 
structed and maintained a sufficient sidewalk in front of such property. 

Sec. 596. Cost of sidewalks along wharves, parks, etc. In all 
cases where it shall be deemed necessary by any municipal corpora¬ 
tion to build or repair sidewalks along that portion of any street, al¬ 
ley or public highway, which passes by or through any public 
wharves, market-spaces, parks, cemeteries public grounds or buildings, 
the proper proportion of the estimated expense thereof shall be by 
the council of such corporation levied, certified and collected in the 
same manner as is provided in chapter forty-eight. 3 

V.— Turnpikes, Plankroads and Water-courses. 

Sec. 597. Cost of turnpikes, etc., owned or controlled by cor¬ 
poration. When any portion of any turnpike or plankroad, or the 
control thereof, is required by any municipal corporation, or when any 
arrangement is made with the company owning the same for the im¬ 
provement or repair thereof, the cost thereof, and of improving and 
keeping the same in repair, shall be provided for in the same manner 
as the streets and other highways of the corporation. 4 

Sec. 598. Bemedy for neglect of corporation to keep roads in 
repair. If a municipal corporation shall condemn any portion of a 


1 Act of February 15,1867; 64 O. L. 16. 

2 Act of March 16,1865; 62 O. L. 45. 

s Act of February 21,1866; 63 O. L. 22. 

4 Act of April 6,1866 (63 0. L. 187); May 1, 1861 (58 0. L. 113); May 13, 



[ 153 ] 

turnpike or plankroad, and fail to keep the portion so condemned in 
as good condition and repair as is required by the charter of the com¬ 
pany, the directors of the company may, by writ of mandamus, com¬ 
pel the corporation to perform that duty. 1 

Sec. 599. Adaptation of turnpikes to corporation improve¬ 
ments, etc. Whenever the road of any turnpike or plankroad com¬ 
pany shall pass through or terminate in any municipal corporation, 
the council or trustees shall have power, with the consent of the 
company, to make any improvement or repair of such road as shall he 
additional to the improvement or repair required by law of the com¬ 
pany, and as, in the opinion of the council or trustees, will better 
adapt such road to use as a street of the corporation. 1 

Sec. 600. Right of toll not' to be impaired. The right of any 
company to take toll at any toll-gate established in the corporation, 
shall not be impaired by anything in this act contained. 1 

Sec. 601. Cost of constructing, etc., water-courses. The expense 
of constructing, opening, enlarging, excavating, improving, deepen¬ 
ing, or extending any canal, ship-channel, or water-course, as author¬ 
ized by this act, shall be assessed and collected in the manner pointed 
out in this chapter. 1 


CHAPTER L. 

# 

SEWERS, DRAINS AND DITCHES. 2 


Section. 

602. Plans for sewerage and drainage. 

603. Sewer districts. 

604. Main or trunk sewers. 

605. Assessment by districts. 

606. Discrimination as to improvements. 

607. Plans and specifications. 

608. Ten days 1 notice to be given, etc. 

609. Amendment of plans, etc. 

610. Engineer to estimate costs, etc. 

611. Construction of sewers, ordinance, etc. 

612. Assessment of cost of main sewers. 

613. Limit of such assessment. 

614. Assessment of cost of local sewerage. 

615. Rule of assessment, etc. 

616. Discrimination in assessment in certain 

cases. 

617. Assessment not to exceed two dollars per 

front foot. 

618. Assessment according to benefits. 

619. Report of assessments. 


Section. 

620. Notice of assessment to be published. 

621. Filing of objections to assessment. 

622. Action of council thereon. 

623. New assessment provided for. 

624. Errors to be corrected. 

625. Order to county auditor to place assess¬ 

ment on duplicate. 

626. Assessments to be a lien on lands. 

627. Proceedings for recovery of assessments. 

628. Assessments iu new sewer districts. 

629. Subdivision of main sewer districts. 

630. Assessments pro rata, etc. 

631. Construction of branch or local sewers. 

632. Proceedings therefor. 

633. Division of lots after first assessment. 

634. House connections and branches. 

635. Cost of branch sewers, how assessed. 

636. Tapping sewers for private use. 

937. Ditches for drainage. 

638. Repairs of ditches, sewers, etc. 


Sec. 602. Plans for sewerage a nd drainage. Whenever it may 
become necessary, in the opinion of the council of any city or incor¬ 
porated village, to provide a system of sewerage and drainage for such 


1 Act of May 1, 1861 (58 O. L. 113); May 13, 1868 (65 O. L. 187); Febru¬ 
ary 19, 1866 (63 O. L. 18); March 28,1864 (61 O. L. 71.) 

2 On an application to vacate a restraining order theretofore issued, to 
prevent the threatened destruction of plaintiff’s building by the defendant, 
in the excavation of an alley for sewerage, it appeared that the alley had 
been dedicated to the public and used as a thoroughfare for more'than 





[154] 

city or incorporated village, or any parts thereof, it shall be the duty 
of the board of improvements to devise and form, or cause to be de¬ 
vised and formed, a plan of sewerage and drainage for the whole city 


thirty years; that the alley was nine feet in width, and the buildings 
had been erected upon its north and south lines by a grade regularly es¬ 
tablished by the city authorities; that the alley had been paved and im¬ 
proved upon the grade, and the plaintiff's building, a valuable structure of 
several stories in hight, abuts upon it; that the defendants had begun and 
intended to continue to excavate throughout the alley, four feet in width 
and thirteen and a half feet in depth, for the purpose of carrying out a gen¬ 
eral system of sewerage adopted by the city, under the laws of the state; 
that the plan of sewerage prescribed by law had been prepared with care, 
many of the principal sewers were already built, and the connections to the 
main channels were required to be laid through the alleys which divide 
and intersect the various blocks on the city plat; that the excavation could 
not be made to the depth contemplated by the city without immediate de¬ 
struction or permanent consequential injury to the owners, requiring thor¬ 
ough reconstruction, or the expenditure of large sums to repair and render 
safe the tenements. 

Storer, J., said : “ As the inevitable result of the work thus projected, we 
are satisfied from the proofs before us, as well as the condition of the prem¬ 
ises, the plaintiff’s building will fall, or be so impaired in its integrity from 
the cracking of its walls, or the sinking of the soil, that it will become ne¬ 
cessary to take it down and re-erect it. Should such an event occur, we 
must hold the defendants liable in damages. They have not only hazarded 
the safety of all the structures along the line of "the alley by the excava¬ 
tion, but by digging below the surface, beyond the point authorized by 
law, have assumed all the responsibility of the result. If, when an injury 
is done, the individual suffering may recover to the extent of his loss, it 
follows he must have the additional right to invoke our preventive aid by 
injunction to secure his possession. It can not be claimed that a corpora¬ 
tion possesses a higher immunity from liability than an individual, when 
the question is made how far the owner and proprietor of a dwelling-house 
is to be protected in its enjoyment. He may well ask the judicial tribu¬ 
nals to defend his domicil from individual as well as public "aggression.” 

“In the ordinary case of adjacent landholders, there is always an im¬ 
plied right to lateral support; neither can impair the natural strength of 
the soil on which the other’s occupation rests; the privilege of being mu¬ 
tually upheld by the common surface is unquestionably secured, and we 
can not distinguish between that class of individual rights and those 
claimed by the plaintiff in this action.” Motion to vacate overruled. 
Fenton v. Cincinnati , Superior Court of Cincinnati, 1868. MS. 

It is not in the power of the city council to charge the cost of construct¬ 
ing a sewer on the owner of the property unless the law authorizing the 
assessment was in force at the time the improvement was made. Cincin¬ 
nati v. Wiggins, Superior Court of Cincinnati, General Term. MS. 

Where a building was erected on the line of an alley with reference to 
the grade of the alley before that time established in due form of law by 
the city council, and the city dug to the depth of fourteen feet in the alley 
for the purpose of placing a public sewer therein, under the act of March 
14,1864, which excavation so impaired the foundation of the building that 
the walls separated and cracked, and the building became dangerous, and 
in consequence of which it was taken down: Held, that the city was liable 
for the damages thereby occasioned. Aub v. Cincinnati , Superior Court of 
Cincinnati, General Term. MS. 

Storer, J.: “It seems to us there is no distinction between the power 
claimed to build a sewer, or to regrade or improve the highway; both 
affect directly the rights of lot-owners; and the same reason exists in the 



[ 155 ] 

or incorporated village, or any part or parts thereof as may be desig¬ 
nated by the council. 1 

Sec. 603. Sewer districts. The plan so devised shall, in the dis¬ 
cretion of the council, be formed, with the view of the division of the 
corporation into as many sewer districts as may he deemed necessary 
for securing efficient drainage and sewerage; each of the districts to 
be designated by name or number, and to consist of one or more main 
or principal sewers, with the necessary branches and connections, the 
main or principal sewers having their outlet in a river or other proper 
place ; the districts to be so arranged as to be independent of one an¬ 
other so far as practicable. 2 

Sec. 604. Main or trunk sewers. The council may, if they deem 
expedient, provide for the construction of main or trunk sewers with¬ 
out regard to districts. 2 

Sec. 605. Assessment by dist?'icts. Where the corporation is di¬ 
vided into sewer districts, the assessments provided for in this chap¬ 
ter shall be by districts. 2 

Sec. 606. Discrimination as to improvements. After such plan 
shall have been prepared and adopted by the board of improvements, 
it shall be their duty to designate such portions of the work as may 
be required for immediate use. Where the corporation is divided into 
districts, such designation shall be by districts, and shall show what 
district or districts, or part or parts thereof, are to be improved. 2 

Sec. 607. Plans and specifications. It shall be the duty of the 
board to have plans and specifications prepared for the construction of 
the proposed main sewers, showing the size, location and inclination 
thereof, and the depth of the same below the surface. 2 

Sec. 608. Ten days’ notice to be given , etc. When plans and speci¬ 
fications for the main sewers have been prepared, it shall be the duty 
of the board of improvements to give at least ten days’ notice in one 

one case as in the other, why the court should require those who have pro¬ 
duced the injury to repair it.” Ik 

Where, in’ constructing a general system of sewerage, the work is im¬ 
properly or negligently done, the city is liable for any injury thereby occa¬ 
sioned to person or property. But, although the city has conferred upon 
it the full power to make “common sewers, drains and vaults,” yet it is 
not liable for a failure to provide such general system. The language is 
that of permission and not of command, and if it can in any sense be re¬ 
garded as imperative, still there can be for such failure no civil remedy. 
Procter v. Cincinnati, Superior Court of Cincinnati, General Term, 1865. MS. 

That with respect to the construction of sewers and their connection 
with private sewers, a city, having by law a board of public works and a 
city civil engineer, is bound to the use of such knowledge and skill in the 
sewerage of the city as a careful, skillful and competent city engineer, 
having charge of such work, should exercise and use, taking into consid¬ 
eration the uses and purposes for which sewers are constructed in the city. 
Ib. And ordinary care is all that is required in the preservation of the 
public works, streets, etc. Disney B. 532. 

1 Act of March 14,1864 (61 O. L. 25); April 8, 1856, § 6. 

2 Act of March 14,1864 (61 O. L. 25); March 25, 1864 (61 O. L. 64): May 
1,1864 (61 O. L. 48); March 9,1866 (63 O. L. 36); April 21,1868 (65 O. L. 
104); April 16,1867 (64 O. L. 236); March 26,1860 (4 Curwen, ch. 2105); 
Mag'ch 11, 1863 (60 O. L. 14); May 1,1858 (4 Curwen, ch. 1857.) 



[156] 

or more newspapers of general circulation in the corporation, stating 
that such plans have been prepared, and are filed in the office of the 
board for examination and inspection by parties interested. The 
notice shall also show the portions of the work proposed to be done; 
and, where main sewer districts are provided for, shall give the 
boundaries thereof. * 1 II, 

Sec. 609. Amendment of plans, etc. At the time specified in the 
notice, or at any adjourned meeting, the board of improvements shall 
hear the parties interested, and may, if they see proper, amend or cor¬ 
rect the plans; and they shall thereupon file the plans, as amended, 
or, if no amendment be made, then the original plans, duly certified 
by them, in the office of the civil engineer of the corporation. 1 

Sec. 610. Engineer to estimate costs, etc. After the plan of sewer¬ 
age for the corporation, or any part thereof, shall have been approved 
by the board of improvements, and duly filed in the manner above 
provided, the council may direct the civil engineer to make an esti¬ 
mate of the cost and expenses of constructing the work according to 
such plan, and to report to the council what portion of the same will 
be required for main sewerage, and what portion for local sewerage for 
any lots and lands to which any portion of such main sewer shall 
serve as local sewer. 1 

Sec. 611. Construction of sewers , ordinance , etc. The council 
shall, on the recommendation of the board of improvements, cause to 
be constructed such sewer or sewers, specified in said plan, as shall be 
designated by the board; and the ordinance shall specify the street, 
lane, alley, highway, market-space, public landings or commons, or 
part or parts thereof, to be sewered and drained, in such manner that 
an examination or survey will show what lot or lots of land bound or 
abut on the same; and the council, upon the passage of such ordi¬ 
nance, shall cause a plat to be made and filed in the office of the clerk 
of the corporation, of the lots so bounding or abutting, and the num¬ 
ber of the feet front of each lot. 2 


1 See note 2, ante, p. 155. 

2 Act of April 12,1861 (58 O. L. 86); March 14, 1864 (61 O. L. 25); May 

I, 1861 (58 O. L. 57); Mav 1,1S64 (61 O. L. 48); March 9,1866 (63 O. L. 
36); April 16,1867 (64 (XL. 236); April 3, 1867 (64 O. L. 104); April 8, 
1856); May 1,1858; March 26,1860; April 11,1865 (62 0. L. 117); March 

II, 1863 (60 O. L. 14.) 

The city council having declared that it was necessary to provide a thor¬ 
ough system of sewerage and drainage, the Board of City Improvements 
adopted a general plan, making divisions and districts, and among others 
the eighth district. The board selected that district as one for immediate 
improvement, and caused plans, etc., to be prepared, and after approving 
them, caused the same to be filed in the office of the city engineer. On the 
recommendation of the board, the council, August 12, i866, passed an ordi¬ 
nance for the construction of sewers, etc., in that district, the cost to be 
assessed according to the statute and ordinances. After advertisement 
was made, the contract for the construction of the sewer, etc., was awarded 
to C., who performed the work according to instructions. The board after¬ 
ward recommended to the council an ordinance levying two dollars on 
each front foot of the lots bordering on the streets sewered to defray the 
cost. K. was the owner of a lot abutting on one of the streets so improved. 



L1571 

Sec. 612. Assessment of cost of main sewers. The council shall 
provide for assessing the cost and expenses of constructing main sew¬ 
ers upon the lots and lands bounding or abutting upon the streets, 
lanes, alleys, highways, market-spaces, public landings and commons, 
in or along which the same shall pass, upon the feet front, or according 

To a petition fully setting* forth these facts, K. answered, among other 
things, that there was no connection between his premises and the sewer; 
that there was no drainage from Ids property into the sewer; that he was 
prohibited by statute and ordinance from tapping the sewer or making a 
connection therewith, unless he would pay a further sum for the privilege, 
and bind himself to hold the city harmless from loss occasioned by reason 
of such connection; and that the sgwer was of no special use or benefit to 
his property, and was part of a general system for the public use: where¬ 
upon lie insisted that the levying this assessment was a violation of the 
Constitution, art. 12, § 2; art. 13, § 6. C. filed a demur to the answer, and 
that was sustained. Cottle v. Kino , Superior Court of Cincinnati, General 
Term. MS. 

“ The question presented by the pleadings,” said Storer, J., “ is simply 
this: 1 lave the city council, under the act of March 14,1S64, amendatory to 
the act of March 5, I860, and the subsequent ordinances of the city, the 
authority to assess the cost of sewerage upon the real estate abutting upon 
the public street where the work is constructed? 

“ The distinction between the constitutional right to levy taxes for gen¬ 
eral purposes, to raise a revenue for state or municipal purposes, and the 
power to assess private property for the improvement of thoroughfares, is 
so well defined by the language of the present Constitution and the decis¬ 
ions of our courts, that we are left in no doubt as to the true meaning of 
our organic law on the subject. All property may be taxed, but all can 
not be assessed. In the one case, the public interest makes the imposition 
proper; in the other, the benefit of the projected work to the individual 
authorizes an assessment upon his estate, which discriminates the burden 
from general taxation. This was the construction given to the Constitu¬ 
tion of 1802. ************ 

“ But it is claimed that the principle modifying the right to assess the 
property of individuals for the expense of public improvements is, that the 
owner is individually benefited in proportion thereto, and the exercise of 
the taxing power for that purpose is legitimate. And this would seem to 
be the opinion of the Supreme Court in Hill v. Higdon , 5 O. S. 243, where 
Judge Banney lays down the rule. We accept the definition, and are sat¬ 
isfied it should control our action in every proper case where it can with 
safety be applied. If the supposed benefit to the land-owner authorizes 
the assessment, what shall be the measure of the benefit ? how far shall 
it extend ? what must be its real value ?” 

After a full examination of the subject, the court held, that not¬ 
withstanding the general allegations of the answer that the sewer was no 
benefit to K., yet on the facts as they appeared, there was that kind of spe¬ 
cial benefit which authorized the assessment; and hence, as already stated, 
the demur to the answer was sustained. 

Where an assessment was charged by the city on real estate for the cost 
and expense of building a circular stone culvert of six feet interior diam¬ 
eter through private property, and it appeared the work was done under 
the act of March 14,1864: Held , that the assessment could not be enforced. 
Hoadly, J.: “ It is obvious that the power has been denied to the city to 
assess the cost of such improvement on any other property than that front¬ 
ing on each side of a street, lane, alley, common, market-space, or public 
landing, through or under which the sewer passes. If the sewer is 
through private property the law is inapplicable, and the entire cost must 
be paid out of the general fund.” Hauer v. Cincinnati , Superior Court of 
Cincinnati, 1865. MS. 




[158] 

to the valuation of the same on the county duplicate, or according to 
benefits, as they shall determine in each case. 1 

Sec. 613. Limit of such assessment. Such assessment shall not 
exceed the sum that would, in the opinion of the council, be required 
to construct an ordinary street sewer or drain of sufficient capacity to 
drain or sewer said lots or lands ; nor shall any lots or lands be as¬ 
sessed that do not need local drainage, or are already provided there¬ 
with. The excess of the cost, if any, over the assessment herein au¬ 
thorized, shall be paid out of the sewer fund of the corporation. 1 

Sec. 614. Assessment of cost of local sewerage. The council shall 
also provide for assessing the expenses of local sewerage upon the 
feet front of lots and lands by or trough which any portion of the 
main sewer may pass, or according to the valuation of the same upon 
the duplicate, or in proportion to benefits, as they shall determine in 
each case. 1 

Sec. 615. Rule of assessment , etc. If the assessment is upon the 
feet front, the basis shall be determined by taking the total cost of 
constructing the main and lateral sewers and drains, and the neces¬ 
sary appurtenances and inlets, and dividing such gross amount by the 
number of feet front subject to assessment as herein provided for, on 
each side of the street, lane, alley, highway, common, market-place 
or public landing, through or in which said sewers and drains may be 
laid, the quotient forming the amount to be assessed per foot front for 
each side of said street, lane, alley, highway, common, market-space 
or public landing aforesaid, as a charge for the cost and expenses of 
constructing said sewers and drains, and their necessary appurten¬ 
ances. 1 

Sec. 616. Discrimination in assessment in certain cases. The 
council may exempt from assessment such portion of the frontage of 
any lot having a greater frontage than its average depth, and so much 
of any frontage of corner lots as to them may seem equitable, and 
charge the deficiency caused by such exemption on the whole frontage 
taxed pro rata; but in so doing they shall specially set forth in the 
ordinance making such assessment each lot so exempted ; which ordi¬ 
nance, when passed, shall be binding upon the parties interested. 1 

Sec. 617. Assessment not to exceed two dollars per front foot. In 
no case shall the assessment exceed the sum of two dollars per front 
foot on the property assessed; and when the amount of the quotient 
exceeds this sum, the excess shall be paid out of the sewer fund of the 
corporation. 1 

Sec. 618. Assessment according to benefits. If the assessment is 
according to benefits, the council shall appoint three judicious free¬ 
holders of the corporation, or its vicinity, who shall assess the esti¬ 
mated expense of the main sewerage upon the lots or lands along 
which the same shall pass, in the manner above provided, in propor¬ 
tion to benefits; and the estimated expense of the local sewerage 
where such local sewerage shall be provided for by this chapter, on 


1 See note 2, ante, p. 156. 



[159] 

sucli lots and lands as will, in their opinion, be benefited thereby, 
whether fronting on the public ground in which the local sewer is to 
be constructed or not, in proportion, as nearly as may be, to the bene¬ 
fits which may result to each lot or parcel of land. 1 

Sec. 619. Report of assessments. The assessors shall make a re¬ 
port in writing, specifying the amounts assessed by them upon each 
lot or parcel of land for main or local sewerage separately, and file the 
same with the clerk of the corporation within such time as the council 
shall direct. 1 

Sec. 620. Notice of assessment to be published. After the report 
is filed, the council shall cause not less than ten days’ notice to be 
given in some newspaper of general circulation in the corporation, of 
the object of such assessment, and that the same will come before the 
council for confirmation at a time to be specified in the notice. 1 

Sec. 621. Filing of objections to assessment. Objections to the 
assessment shall be in writing and filed with the clerk within two 
weeks after the expiration of the notice, and persons objecting may be 
heard before the council at the time specified in the notice. 1 

Sec. 622. Action of council thereon. The council may set aside 
the assessment on their own motion, or they may, after hearing objec¬ 
tions, confirm the same. 1 

Sec. 623. New assessment provided for. If the council set the first 
or any other assessment aside, they may appoint other assessors pos¬ 
sessing the same qualifications as hereinbefore provided, cause new as¬ 
sessments to be made, and the proceedings shall be the same as is pro¬ 
vided for in th& first assessment. 1 

Sec. 624. Errors to be corrected. In confirming any assessment, 
the council may correct any errors in description of any lots or lands 
made by the assessors. 1 

Sec. 625. Order to county auditor to place assessment on dupli¬ 
cate. After making an assessment for main or local sewerage according 
to valuation, or according to feet front, or after the confirmation of any 
assessment for main or local sewerage according to benefits, the coun¬ 
cil may order such percentage of the assessment for main sewerage as 
may be necessary to pay the estimated cost of such portion of any 
main sewer, as provided for in this chapter, as they may determine to 
construct, together with the total assessment for local sewerage for 
such portion of any main sewer, whether the assessment be by valua¬ 
tion, by benefits or by the feet front, to be certified to the county audi¬ 
tor of the county in which the corporation is situate, to be placed on 
the county duplicate and collected as other taxes. 1 

Sec. 626. Assessment to be a lien on lands. All assessments made 
under the provisions of this chapter shall be a lien on the lots or lands 
assessed. They shall be transferable, and may be collected against 
the owners personally, or by an enforcement of the lien upon the prop¬ 
erty subject thereto. 1 

i Act of February 9,1863 (60 O. L. 6); May 1,1864 (61 O. L. 48); March 
14,1864 (61 O. L. 25); May 1,1861 (58 O. L. 86); May 1,1858 (4 Curwen, 
ch. 1857.) 



[ 160 ] 

Sec. 627. Proceedings for recovery of assessments ✓ Proceedings 
for the recovery of the assessments or the enforcement of the lien, 
shall be as directed in chapter forty-eight. 

Sec. 628. Assessments in new sewer districts. Whenever a sewer 
district shall be set off, or established, the main sewer of which shall 
be a continuation of, or drain through, or into, the main sewer of any 
other district, the council, in providing for assessing the costs and ex¬ 
penses of the main sewer in such new sewer district, may provide for 
assessing upon the lots and lands in such new sewer district such pro¬ 
portion as said council shall determine to be just, of the cost and ex¬ 
penses of constructing any unconstructed part of the main sewer, in 
the district through which said new main sewer shall drain; such as¬ 
sessment, when the proportion thereof shall be so determined, shall 
be made in the manner that other assessments are herein directed to 
be made. 1 

Sec. 629. Subdivision of main sewer districts. The council shall 
have power to subdivide any main sewer district into sub-main sewer 
districts, or lateral or branch sewer districts, in the manner in which 
the establishment of main sewer districts is provided for; and to lay 
out and construct in such sub-main, or lateral or branch sewer dis¬ 
tricts, sub-main, lateral or branch sewers having a common outlet into 
a main sewer, and to assess and collect the cost of such construction 
upon the lots and lands in such sub-main, or lateral or branch sewer 
district, in all respects, as directed in this chapter for the assessment 
and collection of the cost of constructing main sewers. 1 

Sec. 630. Assessment pro rata, etc. If the council shall deter¬ 
mine to build only a portion of the sewer or sewers in such sub-main, 
lateral or branch sewer districts, it shall be lawful in such case to levy 
and assess the pro rata cost of constructing the whole of the sewer or 
sewers in such districts, upon the lots or parcels of land bounding or 
abutting upon the streets or public highways through or by which 
said portion of such sewer or sewers may be constructed, and the ex¬ 
cess in the cost of the sewer or sewers so built, over and above the es¬ 
timated pro rata cost for the whole district, shall be levied and assessed 
pro rata upon all the lots or parcels of land bounding or abutting upon 
the streets or public highways in such districts in which the sewer or 
sewers are not at that time completed. 

Sec. 631. Construction of branch or local sewers. The council 
may provide for the construction of branch or local sewers, upon any 
street or other public ground within the corporation, wherein a main 
sewer is not established or built, which local sewers shall connect with 
a main sewer convenient thereto, as the council may direct. If the 
corporation be laid off into districts, the connection shall be with a 
main sewer in the district wherein the local sewers are constructed. 1 

Sec. 632. Proceedings therefor. Proceedings for the establish¬ 
ment and construction of local sewers, as provided for in the preced- 


i Act of April 21,1868 (65 0. L. 101); April 5,1866 (63 0. L. 141): April 
3,1867 (64 0. L. 104.) ’ P 



[ 161 ] 

ing section, and for the assessment and collection of the cost and ex¬ 
penses thereof, shall be as directed in the previous sections of this 
chapter regulating the establishment and construction of local sewers 
in connection with main sewers. 1 

Sec. 633. Division of lots after first assessment. Should any 
division or subdivision of lots or lands assessed for sewerage purposes 
occur after the first assessment has been made and confirmed, the 
council may require the same, or such other assessors as they shall se¬ 
lect, to apportion the original amount assessed upon the several parts 
of lots or lands so divided, whose report, when confirmed by the coun¬ 
cil, shall be conclusive upon all parties; and all assessments there¬ 
after made upon such lots or lands, shall be according to such division, 
and collected in the same manner as upon the original assessment. 2 

Sec. 634. House connections and branches. The council, upon 
the recommendation of the board of improvements, may provide for 
the construction of proper house connections and branches, leading 
into all main or branch sewers, and for the assessment of the cost and 
expense thereof upon the lots or parcels of land, for the accommodation 
of which such connections and branches may be constructed. In no 
case, except as a sanitary measure, shall the council require such house 
connections to be built further from the sewer than to the inner line 
of the curbstone of the street or highway in which the same may he 
constructed. 2 

Sec. 635. Cost of branch sewers, how assessed. When any im¬ 
provement provided for in the preceding section has been made, and 
the assessment therefor has not previously been ordered, the council 
shall pass an ordinance assessing the costs thereof upon the lots or 
parcels of ground for the accommodation of which such improvement 
was made, and such ordinance shall declare the time within which 
said assessment shall be paid into the treasury. 2 

Sec. 636. Tapping sewers for private use. Parties owning prop¬ 
erty abutting upon any street or public highway, in or though which 
any public sewer or drain may be constructed, shall have the privilege 
of tapping and using the same for the purpose of draining their prem¬ 
ises, under such rules and regulations as may be prescribed by the 
board of improvements; and the council may, by ordinance, require 
persons contracting to build such house connections to procure a li¬ 
cense from said board, and may charge therefor such sum as may be 
deemed just. 2 

Sec. 637. Ditches for drainage. The council of any city or incor¬ 
porated village shall also have power to provide for the construction 
of ditches for necessary drainage within the corporation, under the 
restrictions and regulations, so far as applicable, contained in this 
chapter. 2 

1 See note 1, ante, p. 160. 

2 Act of March 14,1864 (61 O. L. 25); February 9,1863 (60 O. L. 6); Jan¬ 
uary 26,1867 (64 O. L. 8); April 11,1867 (64 O. L. 124); April 16, 1867 (64 
O. L. 236); April 5, 1866 (63 O. L. 144); April 21,1868 (65 O. L. 104): May 
1,1861 (58 0. L. 86.) 

11 



[ 162 ] 

Sec. 638. Repairs of ditches , sewers , efc. The council may, when¬ 
ever it shall he deemed necessary, provide for the repair or recon¬ 
struction of any sewer, ditch or drain. The proceedings for that pur¬ 
pose shall he the same, so far as applicable, as are herein required for 
the original construction thereof. 1 


CHAPTER LI. 

FINANCE AND TAXATION. 2 


Section. 

639. Taxation in villages for special purposes. 

640. Rates of taxation in cities and villages 

for general purposes. 

641. Rates of levy for special purposes. 

642. Construction of limitations. 

643. Anticipation of tax in certain cases. 

644. Rates of levy for special purposes. 

645. Levy for payment of bonds. 

646. Levy for a greater tax to be submitted 

to vote. 

647. Levy of tax for public buildings. 

648. Maximum of tax allowable 

649. Per centage of tax to bo certified to 

county auditor. 

650. Corporation taxes, how collected 

651. Levy and collection of taxes within cor¬ 

poration. 

Sec. 639. Taxation in villages for special purposes. The trus¬ 
tees of incorporated villages for special purposes, shall have power to 
levy annually, upon the taxable property therein, such rate of taxes as 
may he necessary for the purposes mentioned in chapter five, not ex¬ 
ceeding ten mills on the dollar, for all purposes in any one year. The 
taxes so levied shall be collected in the same manner as the taxes of 
other municipal corporations. 


652. Delinquent taxes to be certified to county 

auditor, etc. 

653. Collection of taxes to pay bonds, etc., is¬ 

sued for public improvements. 

654. Collection to pay bonds issued for sewer¬ 

age purposes. 

655. Taxes on lands laid off into lots, etc. 

656. Debts not to exceed taxes and other rev¬ 

enue. 

657. Mayor to record his protest against ex - 

cess of expenditure. 

658. Board of revision, its duties. 

659. Services and supplies to be in pursuance 

of contracts. 

660. Council restricted as to contracts. 


1 See note 2, ante, p. 161. 

2 Const, of Ohio, Art. XIII, § G; Act of May 14,1868 (65 O. L. 195); April 
14,1863 (60 O. L. 93); May 1, 1861 (58 O. L. 86 ) ; April 10, 1867 (64 O. L. 
121); February 21,1867 (64 O. L. 21); March 9, 1866 (63 O. L. 30): April 
2, 1866 (63 O. L. 86); April 13, 1867 (64 O. L. 141); Februarv 21, 1867 (64 
O. *L. 19); May 1, 1865 (62 O. L. 117); April 12, 1867 (64 O.L. 129); Act 
of 1852, § 89, as amended March 11, 1853; March 11,1853, § 12, as amended 
March 30, 1857; April 5, 1856 (53 O. L. 57.) 

Act of March 11,1853, amended March 28,1859; March 30,1857 ; March 
11, 1867 (64 O. L. 50); Februarv 15, 1868 (65 O. L. 9); February 3,1864 (61 
O. L. 5); May 5,1S68 (65 O. L.'l45); April 11,1867 (64 O. L. 123); March 
28, 1864 (61 O. L. 72); April 12, 1865 (62 O. L. 136); April 8, 1868 (65 O. L. 
67); April 9,1863 (60 O. L. 68); April 16,1867 (64 O. L. 230); April 11, 
1865 (62 O. L. 113); March 30, 1868 (65 O. L. 39); February 24, 1865 (62 O. 
L. 31); March 28, 1864 (61 O. L. 72); April 16, 1867 (64 O. L. 215-249); 
February 27, 1867 (64 O. L. 26); March 28, 1864 (61 O. L. 71); February 
19, 1866 (63 O. L. 18); March 25, 1863 (60 O. L. 44); April 13, 1867 (64 O. 
L. 130) ; April 6, 1866 (63 O. L. 152); May 3,1852, § 77, as amended April 
29,1854; March 29, 1867 (64 O. L. 70); April 3, 1867 (64 O. L. 102); April 
16, 1867 (64 O. L. 203); April 12,1865 (62 O. L. 135); May 8, 1868 (65 O. L. 
163); April 5,1866 (63 O. L. 120); April 13,1867 (64 O. L. 149); March 28, 
1861 (58 O. L. 46); May 3,1861 (58 O. L. 114); March 14,1867 (64 O. L. 52); 
February 24,1865 (62 O. L. 31); March 31,1864 (61 O. L. 134); April 13, 
1867 (64 O. L. 148); March 12, 1853 (51 O. L. 376.) 




[163] 

Sec. 640. Hates of taxation in cities and villages for general 
purposes. The council of any city or incorporated village shall have 
power to levy, annually, for the general purposes of the corporation, 
such amount of taxes on each dollar of valuation of taxable property 
of the corporation on the grand duplicate, as may be determined upon 
by them, not exceeding the following rates ; 

1. For each incorporated village, five mills. 

2. For each city of the second class, six mills. 

3. For each city of the first class, seven mills. 

Sec. 641. Hates of levy for special purposes. Each city and in¬ 
corporated village shall also have power to levy annually, in addition 
to the above, the following rates : 

1. For sanitary and street-cleaning purposes, one mill. 

2. For the maintenance of the infirmary of the corporation, and 
the support of the out-door poor, three-fourths of a mill. 

3. For keeping in repair steam or other fire engines, graded wharves 
or landings on navigable waters, graded, macadamized or paved streets, 
corporation cemeteries, and for the support of the fire department, one 
mill and a half. 

4. For lighting the corporation or supplying it with water, one 
mill and a half. 

5. For keeping up and maintaining bridges, one-half of one mill. 

6. For the payment of the marshal and police authorized by this 
act, one mill. 

7. For the maintenance of the work-house, one mill. 

8. For the expense of maintaining and administering houses of ref¬ 
uge and correction, over and above the receipts from labor of persons 
confined therein, such sum as may be necessary to meet the same. 

9. For schools and school-house purposes, such rate as may be pre¬ 
scribed by law. 

10. For a sewer fund, one-half of one mill. Where the corporation 
is divided into sewer districts, the levy shall be by such districts. 

Sec. 642. Construction of limitations. The limitations contained 
in the two preceding sections, shall not be construed to prohibit spe¬ 
cial assessments for improvements provided for by this act, nor the 
levy of a tax to raise means for the payment of the interest and prin 
cipal of the debts of the corporation, nor of any tax authorized by¬ 
law for special purposes. 

Sec. 643. Anticipation of tax in certain cases. The council shall 
have power to anticipate the tax authorized to be levied for sanitary 
and street-cleaning purposes, either by the temporary transfer of other 
funds (except school funds), or by temporary loans for that purpose. 

Sec. 644. Hates of levy for special purposes. The council shall 
also have power to make the following levies : 

1. For the real estate and right of way required for any improve¬ 
ment authorized by this act, one mill. 

2. For erecting, enlarging or improving water-works, three mills. 

3. For the erection of school buildings, three mills. 

4. For wharves and landings, one-half of one mill. 


L164] 

5. For market-houses, two-tenths of one mill. 

6. For the erection of corporation prisons, three-tenths of one milL 

7. For the erection of buildings required for the fire department, the 
construction of reservoirs, the purchase of steam or other fire engines, 
hose and other apparatus for the use of such department, one mill. 

8. For the erection of halls and*public offices, one mill. 

9. For the improvement of highways leading into the corporation, 
three-tenths of one mill. 

10. For the construction of levees and embankments, one-half of 
one mill. 

11. For the improvement of any water-course passing through the 
corporation, one-half of one mill. 

12. For the erection of work-houses, three mills. 

13. For the erection of houses of refuge and correction, three mills, 

14. For the erection of hospitals, three mills. 

15. For the erection of infirmaries, three mills. 

16. For the erection of gas-works, three mills. 

17. For grounds for cemetery purposes, inclosing, improving, em¬ 
bellishing or enlarging the same, one mill. 

18. For grounds for public parks, inclosing, improving, embellish¬ 
ing or enlarging the same, two mills. 

19. For the construction of bridges, two-tenths of one mill. 

20. To pay the interest on the public debt of the corporation, a sum 
sufficient to satisfy the same as it accrues annually, to he applied to 
no other purpose. 

21. For the construction and repair of sewers, drains and ditches, 
one mill. Where the corporation is divided into sewer districts, the 
levy shall he by such districts. 

22. For the purpose of keeping up and maintaining a free public 
library and reading-room in the corporation, one-half of one mill. 
But no tax shall he levied for this purpose unless a suitable lot and 
building therefor, supplied with library furniture and fixtures, shall 
first be donated, leased to or rented by the corporation. 

23. For any improvement authorized by this act not above provided 
for, one mill. 

24. Such proportion of the amount authorized to be levied by this 
section, for either of the purposes therein specified, may be levied an¬ 
nually, as the council may, by ordinance, prescribe. 

Sec. 645. Levy for payment of bonds. When the bonds of the 
corporation have been issued in anticipation of any tax provided for in 
the preceding section, the same tax may be levied to raise means for 
the payment of such bonds as is authorized for the purpose for which 
they were issued. 1 


i Where a municipal corporation issues its own bonds, payable at a fu¬ 
ture day, with seven per cent, inteust thereon, payable semi-annually, 
when by law it was authorized to make the interest payable annually 
only, the person who contracts with the corporation, for a valuable con¬ 
sideration, to redeem such bonds, can not avoid his own contract upon 
the ground that the corporation exceeded its authority in making the in- 




[165] 

Sec. 646. Levy for a greater tax to be submitted to vote. A 
greater tax than that authorized by this chapter, for either of the pur¬ 
poses mentioned therein, may be levied, if the proposition to make 
such levy shall have been first submitted to a vote of the electors of 
the corporation, under an ordinance prescribing the time, place, and 
manner of voting on the same, and approved by a majority of those 
voting on the proposition. 

Sec. 647. Levy of tax for public buildings. Whenever it may 
become necessary for any city to provide grounds and erect thereon a 
court house, jail, or public offices, for the use of the county within 
which it may be situated, or to contribute to either of said purposes, 
the council may levy a tax of one mill upon the taxable property of 
the corporation. But such tax shall not be levied until the same shall 
be approved by a majority of the electors of the corporation in the 
manner pointed out in the preceding section. 

Sec. 648. Maximum of tax allowable. The aggregate of all 
taxes levied or ordered by any corporation, over and above the general 
levy, shall not exceed in any one year three per cent, on the value of 
any property assessed for taxation. 

Sec. 649. Per centage of tax to be certified to county auditor. 
The council shall cause to be certified to’the auditor of the county, on 
or before the first Monday of June, annually, the per centage by them 
levied on the real and personal property in the corporation returned on 
the grand levy; and the county auditor shall place the same on the 
duplicate of taxes for said county in the same manner as township 
taxes are now by law placed on said duplicate. 

Sec. 650. Corporation taxes , how collected. The taxes of the corpo¬ 
ration shall be collected by the county treasurer, and paid into the 
treasury of the corporation, in the same manner, with the same 
power and restrictions, and under the same regulations; and in all 
things as to the sale of real or personal property, he shall act ac¬ 
cording to the provisions and requisitions of the law for the collec¬ 
tion of taxes for state and county purposes. 

Sec. 651. Levy and collection of taxes within corporation. 
Nothing in this chapter shall be construed to prevent any corporation 
that may elect to do so, from levying and collecting taxes within the 
corporation; and when any corporation shall elect to levy and collect 
such taxes, it shall be the duty of the council to provide, by ordi¬ 
nance, for the appointment and regulation of the necessary officers to 
carry the same into effect; and such officers so created shall have all 


terest on such bonds payable semi-annually instead of annually. Newark 
v. Elliott , 5 O. S. 113. 

The issuing of bonds in the name of “the town of Perrysburg,” instead 
of the name of “ the incorporated village of Perrysburg,” when the latter 
would have been its proper legal designation, is merely a misnomer, 
which does not affect the validity or obligation of such bonds. State v. 
Perrysburg , 14 O. S. 472. 

And see the cases collected in Tiie Ohio Digest, p. 59 et seq ., p. 627 
et seq . 



[ 166 ] 

the power, and be under all the restrictions of county auditors, county 
treasurers, and township assessors, so far as the same shall be appli¬ 
cable to them, except in the sale of delinquent lands. 

Sec. 652. Delinquent taxes to be certified to county auditor , 
etc. The council may order the clerk, or other proper officer of the 
council, to certify any delinquent tax assessed by the corporation to the 
auditor of the proper county, which delinquent taxes, so certified, the 
auditor is hereby required to place on the grand tax duplicate of the 
€ aunty in a separate column, and the same shall be collected in like 
manner as delinquent state and county taxes. 

Sec. 658. Collection of taxes to pay bonds, etc., issued for pub¬ 
lic improvements. In case any special assessment is made, as author¬ 
ized in chapter forty-nine, and bonds, notes, or certificates of indebt¬ 
edness of the corporation are issued in anticipation of the collection 
thereof, the ordinance directing the assessment shall specify the amount 
per foot front or the amount per valuation to be paid, and where the 
assessment is payable in installments, the amount to be jDaid annually. 
And it shall be the duty of the auditor or clerk of the corporation, 
on or before the second Monday in September, annually, to certify 
such assessment to the council, to be by them confirmed, and there¬ 
upon they shall direct the clerk to certify the same to the county au¬ 
ditor, who is hereby authorized and required to place the same on the 
tax duplicate; and the county treasurer is hereby authorized and re¬ 
quired to collect said assessment in the same manner as other taxes 
are collected, and when collected he shall pay the same to the treas¬ 
urer of the corporation, to be by him applied to the payment of said 
bonds, notes, or certificates of indebtedness and interest thereon, and 
for no other purpose ; and for the purpose of enforcing the collection 
of said assessment, the county treasurer shall have the same power 
and authority now allowed by law for the collection of state and 
county taxes. 

Sec. 654. Collection to pay bonds issued for sewerage purposes. 
In case any special assessment is made for sewerage purposes, as au¬ 
thorized by chapter fifty, and the bonds of the corporation are issued 
in anticipation of the collection thereof, such assessment shall be cer¬ 
tified to the council, confirmed, certified to the county auditor, and col¬ 
lected at the same time and in the same manner as is provided in the 
preceding section, and when collected shall be applied to the payment 
of said bonds, and to no other purpose. 

Sec. 655. Taxes on lands laid off into lots, etc. The council shall 
have power to impose taxes upon parcels of land laid off into lots, and 
sold or leased by metes and bounds or other description, though the 
same shall not have been platted and recorded. 1 


i The 26th section of the act of March 11,1853, to amend the act for the 
organization of cities and incorporated villages (act of 1852, § 87), requires 
the auditor of the county to place upon the duplicate of taxes the per cent- 
age regularly levied and certified by the council of a municipal corpora¬ 
tion on all the real and personal property returned on the grand levy in 
such corporation. Zanesville v. Auditor , etc., 5 O. S. 589. 

The provisions of this section are in no way restricted by any provision 



[ 167 ] 

Sec. 656. Debts not to exceed taxes and other revenue . The council 
shall not make appropriations nor contract debts for ordinary purposes 
of the corporation, exceeding the amount of taxes and revenue from 
other sources for the current year. 

Sec. 657. Mayor to record his protest against excess of expen¬ 
diture. If, in the opinion of the mayor, an expenditure shall he au¬ 
thorized by the council, exceeding the revenues of the corporation, for 
the current year, it shall be his duty to protest against such expen¬ 
diture, and enter such protest, and the reasons therefor, on the jour¬ 
nal of the council. 

Sec. 658. Board of revision , its duties. The mayor, the presi¬ 
dent of the council, and the solicitor of the corporation, shall consti¬ 
tute a board of revision, which shall meet as often as once in every 
month, to review the proceedings of the council, and of all other de¬ 
partments of the corporation government, and report to the council 
■whether any department of such government has transcended its pow¬ 
ers, whether any officer has neglected his duties, and also report 
whether any and what retrenchment in the expenses of the corpora¬ 
tion, and what improvement in any of the departments of the corpo¬ 
ration government can be made. 

Sec. 659. Services and supplies to be in pursuance of contracts. 
All services rendered and performed, and all supplies furnished for 
the corporation, shall, as far as practicable, be rendered, performed 
and supplied in pursuance of contracts to be authorized by the coun¬ 
cil, through some appropriate officer or department of the corporation. 

Sec. 660. Council restricted as to contracts. It shall be unlaw¬ 
ful for the council to enter into any contract which is not to go in 
full operation during the term for which all the members of such 
council are elected. 


contained in the special act creating such corporation, or by any implica¬ 
tion arising from the 94th section of the act of 1852. (See § 665, post.) 11. 

All such special acts are repealed by the last named act; and all exemp¬ 
tions of any part of the property in such corporation otherwise subject to 
taxation, from contributing to the general revenue fund, are in conflict 
with the 2d section of the 12th article of the Constitution. II. 

No tax, either for state, county, township, or corporation purposes, can 
be levied without express authority of law ; and this section of the Consti¬ 
tution is equally applicable to, and furnishes the governing principle for, 
all laws authorizing taxes to be levied for either purpose. 11. 

It requires a uniform rate per cent, to be levied upon all property, ac¬ 
cording to its true value in mone 3 r , within the limits of the local subdivis¬ 
ion for which the revenue is collected, subject only to the exemptions spe¬ 
cifically provided for in the section. Ib. 

A writ of mandamus will not lie to compel the county auditor to enter 
such tax upon the duplicate until the time arrives for making it up. Ib. 



[ 168 ] 


CHAPTER LII. 

THE TOWER TO BORROW MONEY AND ISSUE BONDS. 1 

Section. Section. 

6G1. Loans in anticipation of revenue. 666. Issue of bonds for money borrowed in 

662. Issue of bonds, etc., to extend time of anticipation of assessment. 

payment. 667. Bonds may have coupons attached. 

663. Bonds for money borrowed in antici- 668. Character of bonds in certain cases. 

pation of revenue. 669. Sale of bonds to be advertised. 

664. Bonds to be explicit on their face. 670. Bonds not to be sold below par. 

665. Borrowing money in anticipation of 671. Penalty for diverting funds from their 

special assessment. legitimate use. 

Sec. 6G1. Loans in anticipation of revenue. Loans may be made 
by municipal corporations, in anticipation of the general revenue fund. 
The aggregate amount of sucli loans in any one fiscal year shall not 
exceed, in case of an incorporated village for special purposes, one 
thousand dollars; of an incorporated village, fifteen thousand dollars ; 
of a city of the second class, fifty thousand dollars ; of a city of the 
first class, two hundred thousand dollars. 

Sec. 662. Issue of bo7ids, etc., to extend time of payment. 
The trustees or council of any municipal corporation, for the purpose 
of extending the time of the payment of any indebtedness incurred, 
which from its limits of taxation such corporation is unable to pay at 
maturity, shall have power to issue bonds of such corporation, or 
borrow money, so as to change but not increase the indebtedness, in 
such amounts and for such length of time, and at such rate of in¬ 
terest as the council may deem proper, not to exceed the rate of seven 
per centum per annum. 

Sec. 663. Bonds for money borrowed in anticipation of reve¬ 
nue. Loans may also be made by any municipal corporation in 
anticipation of the revenues to be derived from any tax authorized by 
this act for public improvements or other public use ; and the council 
shall have power to issue the bonds of the corporation for the money 
so borrowed, in such amounts as they may determine, bearing a rate of 
interest not exceeding seven per centum per annum, and payable at 


i Act of April 16, 1868 (65 0. L. 92); March 28, 1864 (61 O. L. 71); April 
11,1865 (62 O. L. 117); April 13, 1868 (65 O L. 86); April 11,1868 f65 O. 
L. 85); Act of 1852, § 97 ; March 11,1S53. § 11; § 12, as amended March 30, 
1857; March 31, 1864 (61 O. L. 134); April 13, 1867 (64 O. L. 148.) 

“ The power on the part of the municipal corporation to incur indebted¬ 
ness by borrowing money and issuing bonds, is much more questionable 
than is the power to incur a debt by the purchase of property necessary 
for the public accommodation and use. If a debt is incurred for a neces¬ 
sary public purpose, there is no opportunity to divert the public means 
from its destination. But where a corporation borrows money and issues 
bonds, the money may be wasted or applied to other than public and mu¬ 
nicipal purposes. Hence it has generally been regarded as necessaiy to 
have express power to authorize a municipal corporation to borrow money 
and issue its bonds/’ Morrill v. The City , Superior Court of Cincinnati, 
1869. Taft, Storer and Hagans, JJ. 

See generally as to the power of taxation, cases collected in The Ohio 
Digest, p. 59 et seq. 



L169 ] 

such time as they may deem proper, not exceeding fifteen years, and 
redeemable at any time after six years at the pleasure of the council. 

Sec. 664. Bonds to be explicit on their face. All bonds issued 
under authority of this chapter shall express upon their face the pur¬ 
pose for which they were issued, and under what ordinance. 

Sec. 665. Borrowing money in anticipation of special assess¬ 
ment. The council of any municipal corporation shall also have power 
to borrow money at a rate of interest not exceeding seven per centum 
per annum, in anticipation of the collection of any special assessment, 
and to issue the bonds of the\corporation therefor in the manner and 
form above provided for. 

Sec. 666. Issue of bonds for money borrowed in anticipation 
of assessment. If the council shall make any special assessment pay¬ 
able in annual installments, as authorized in chapter forty-nine, they 
shall have power to borrow upon the credit of the corporation a sum 
of money sufficient to pay the estimated cost and expense of the im¬ 
provement, and shall have authority to issue bonds, notes, or certifi¬ 
cates of indebtedness pledging the faith and credit of the corporation 
for the payment of the principal and interest of such bonds, notes, or 
certificates of indebtedness, said interest not to exceed the rate of seven 
per centum per annum, payable annually. All bonds, notes or certifi¬ 
cates of indebtednes issued as aforesaid, shall have the name of the 
street or portion thereof so improved and for which the same were is¬ 
sued, legibly written or printed upon them, and shall be signed by the 
mayor and auditor or clerk, and be sealed with the seal of the corpo¬ 
ration. 

Sec. 667. Bonds may have coupons attached. Bonds issued as 
provided in this chapter may* in the discretion of the council, have in¬ 
terest coupons attached. 

Sec. 668 Character of bonds in certain cases. Where the cor¬ 
poration is divided into districts for sewerage purposes, bonds issued 
for money borrowed to pay the expense of constructing or repairing sew¬ 
ers in any such district, shall have the name and number of the district 
for which they are issued legibly written or printed upon them. 

Sec. 669. Sale of bonds to be advertised. Whenever bonds are 
issued under the provisions of this act to an amount exceeding ten 
thousand dollars, the sale thereof shall be advertised in at least one 
newspaper published in the corporation, or if no newspaper be published 
therein, then in some newspaper of general circulation in the corpo¬ 
ration, for at least ten days previous to such sale. The advertisement 
shall specify that sealed bids will be received at a place, and until a day 
and hour designated. The bids shall then be opened and read in the 
presence of the bidders present, and the bonds shall be sold to the high¬ 
est bidder, the corporation, however, reserving the right to reject all. 

Sec. 670. Bonds not to be sold below par. In no case shall the 
bonds of the corporation be sold for less than their par value. 1 

i Where a town was restrained from selling its stock for less than its par 
value, this did not prevent a sale on credit, provided the sales amounted 
to the par value of the stock. Newark v. Elliott , 5 0. S. 113. 



[ 170 ] 

Sec. 671. Penalty for diverting funds from their legitimate use. 
If any member of the council, or officer of the corporation, shall know¬ 
ingly divert or appropriate any money borrowed, or bonds of the cor¬ 
poration, or any part of the proceeds thereof, to any purpose other 
than that for which such loan was made or such bonds issued, he shall, 
on conviction, be fined in any sum not less than one hundred nor more 
than one thousand dollars, or be imprisoned in the county jail not less 
than twenty days nor more than six months, or both, at the discretion 
of the court. 1 


CHAPTER LIII. 

SINKING FUND. 2 

Section. Section. 

672. Tax for creating a sinking fund. 674. Such levy to be certified to auditor. 

673. Levy for sinking fund to be upon prop- 675. Penalty for misappropriation of sinking 

erty of districts benefited. fund. 

Sec. 672. Tax for creating a sinking fund. For the purpose of 
creating a sinking fund for the gradual extinguishment of the bonds 
and funded debt of any municipal corporation, the council thereof 
may annually (until payment of the bonds and funded debt be fully 
provided for) levy and collect, in addition to the other taxes of said 
corporation, a tax not less than one mill and not exceeding three mills 
upon the property appraised and returned as provided by law, which 
shall be paid into the treasury, and be applied by order of the coun¬ 
cil, to the extinguishment of said bonds and funded debt, and to no 
other purpose whatever. 

Sec. 673. Levy for sinking fund to he upon property of dis¬ 
tricts benefited. The levy to provide a sinking fund for the redemp¬ 
tion of bonds issued for sewerage purposes, shall, where the corpora¬ 
tion is divided into sewer districts, be upon the property of the dis¬ 
trict for which the bonds were issued. 

Sec. 674. Such levy to he certified to auditor. The tax so levied 
shall be certified to the auditor of the county wherein the corporation 
is situated, to be placed on the county duplicate and collected as other 
taxes ; such taxes shall be a lien on the property whereon they are 
assessed, the same as state and county taxes, and subject to the same 
penalties if delinquent. 

Sec. 675. Penalty for misappropriation of sinking fund. If 
any member of the council, or officer of the corporation, shall know¬ 
ingly divert or appropriate the tax or sinking fund raised under this 
act, to any other purpose than that to which it is by this act appro- 

1 As to the rights of the corporation in case of the diversion or wrong¬ 
ful appropriation of any money or bonds, see the case of the State v. But¬ 
tles, 3 O. S. 309. 

2 Act of 1852, § 91, as amended March 28,1861 (58 O. L. 46); March 11, 
1853, § 11 ; May 3,1861 (58 0. L. 114) ; March 14,1867 (64 O. L. 52); Feb¬ 
ruary 24,1865 (62 O. L. 31) ; April 13,1867 (64 O. L. 148); March 31,1864 
(61 O. L. 134); March 28, 1864 (61 O. L. 72.) 




[171] 

priated, he shall, on conviction, he fined in any sum not less than one 
hundred nor more than one thousand dollars, or imprisoned in the 
county jail not less than twenty days nor more than six months, or 
both, at the discretion of the court. 


CHAPTER LIV. 

LEASE OR SALE OF CORPORATE PROPERTY. 1 

Section. Section. 

676. Lease or sale of corporate property au- 678. This chapter not applicable to certain 

thorized. classes of property. 

677. Disposition of fund so raised. 

Sec. 676. Lease or sale of corporate property authorized. The 
council of any city or incorporated village may, upon the recommenda¬ 
tion of the board of improvements, lease or convey, in such manner 
and for such sum as may be provided by ordinance, any real estate or 
interest therein, any wharf or public landing, any buildings, and also 
dispose of any material from any street, alley, avenue, sewer, bridge, 
ship channel, public ground or park, belonging to the corporation. 

Sec. 677. Disposition of fund so raised. The fund arising there¬ 
from shall be paid into the corporation treasury; to the credit of the 
particular fund by which such property was acquired, if there he any 
such fund, and if no such fund exist, then to the general fund of the 
corporation. 

Sec. 678. This chapter not applicable to certain classes of prop¬ 
erty. The provisions of this chapter shall not apply to the sale of 
school property, except with the concurrence of the board of education, 
nor of property acquired for infirmaries, houses of refuge and correc¬ 
tion and work-houses, except with the concurrence of the directors of 
those institutions, nor of property acquired for water-works purposes, 
except with a concurrence of the trustees of water-works, nor of any 
real estate or the buildings thereon devoted to hospitals,, or other like 
benevolent institutions owned or managed by the corporation. 


i Act of April 8,1856 (4 Curwen, ch. 1632); April 3,1867 (64 O. L. 108 ; ) 
When there is no restraining clause in the charter of a corporation, it 
may dispose of any property which it has the right to acquire. Newarlc 
v. Elliott , 5 0. S. 113. 




[ 172 ] 


CHAPTER LV. 

ANNEXATION OP TERRITORY TO A CITY OR INCORPORATED VILLAGE ON 
THE APPLICATION OP CITIZENS RESIDING THEREON. 1 


Section. 

679. Annexation of adjacent territory. 

G80. Petitions for such annexation. 

681. Proceedings thereon. 

682. Report of transcript to council. 

683. Rejection of application. 

684. Proceedings on acceptance of applica 

tion. 


Section. 

685. Notice of filing of petition to enjoin. 

686. Notice of order of dismission, etc. 

687. Stay of proceedings on order enjoining, 

etc. 

688. Effect of acceptance of annexation. 

689. Proceedings when territory lies in two 

or more counties. 


Sec. 679. Annexation of adjacent territory. The inhabitants 
residing on any territory adjacent to any city or incorporated village, 
may, at their own option, be annexed to such city, or incorporated 
village, in the manner following : 

Sec. 680. Petitions for such annexation. Application for such 
purpose shall he by petition, in writing, addressed to the commis¬ 
sioners of the county in which such territory is located, and shall 
be signed by a majority of the qualified freehold electors residing on 
said territory. It shall contain the name or names of some person or 
persons who are authorized to act as the agent or agents of the peti¬ 
tioners in securing such annexation, and shall fully describe the said 
territory, and be accompanied by an accurate map or plat thereof. 


i Act of 1852, §§ 9-13. 

On the organization of a city of the second class divided into wards, the 
boundaries of which city are not coterminous with those of any township, 
the territory within such city does not cease to be a part of the township 
or townships within the limits of which it is situate. Halsey v. Ward , 17 
O. S. 543. 

Under the statutes, cities of the second class are provided with assessors 
and supervisors of highways of their own ; hence, by implication, electors 
of such city are not entitled to vote for those officers as officers of the 
township. Ib. 

But in the offices of township trustees, clerk, treasurer, justices of the 
peace and constables, electors and tax-payers of the city have in some or 
in all respects a like interest with electors of the townships outside the 
city limits, and are entitled to a vote in the choice of them. And it would 
seem that where the township has not been divided into election precincts, 
under the act of March 4, 1853 (2 S. &C. 1573), the electors of the city are 
entitled to vote for the township officers last above named onlj r at the gen¬ 
eral township polls of the township in which they respectively reside ; and 
in cases where the township has been divided into precincts covering ter¬ 
ritory within the city limits, the electors of the city are entitled to vote 
for the officers last aforesaid only at the township poll of the precinct in 
which they respectively reside. ’ Ib. 

Under the act above referred to, county commissioners have power to 
so subdivide a township into election precincts, that the boundaries of the 
precinct shall correspond with those of the wards of a city within the 
limits of a township; and this, in quo warranto , will be presumed to have 
been done when nothing appears to the contrary, and it appears that the 
votes of city electors were cast for township trustees within their respect¬ 
ive wards, “ at the places properly fixed and designated for holding said 
election.” Ib. 



[173] 

Sec. 681. Proceedings thereon. Such petition shall he presented 
to the hoard of commissioners at some regular session thereof, and 
when so presented, the same proceedings shall thereafter he had in all 
respects, as far as applicable, and the same duties in respect thereto 
shall be performed by the commissioners and other officers, as are re¬ 
quired in the case of application to be organized into an incorporated 
village under the provisions of chapter two; and the final transcript 
of said commissioners, and the accompanying map or plat and peti¬ 
tion, shall be deposited with the clerk of the city or incorporated vil¬ 
lage to which such annexation is proposed to be made, who shall file 
the same in his office. 

Sec. 682. Report of transcript to council. At the next regular 
session of the council of such city or incorporated village, after the 
expiration of sixty days from the date of such filing, the said clerk 
shall report the said transcript and the accompanying map or plat and 
petition to said council, and thereupon such council shall, by resolution 
or ordinance, accept or reject the said application for annexation. 

Sec. 683. Rejection of application. If the resolution or ordi¬ 
nance shall be to reject such application for annexation, then no fur¬ 
ther proceedings shall be had; but such rejection shall not be held to 
operate as a bar to any future application to the county commissioners 
on the same subject. 

Sec. 684. Proceedings on acceptance of application. If the 
resolution or ordinance of the council be an acceptance of such appli¬ 
cation for annexation, then it shall be the duty of the clerk of such 
city or incorporated village to make out two copies of the petition and 
map or plat accompanying the same and transcript of the commission¬ 
ers, and resolutions and ordinances in relation to such annexation, 
■with a certificate that the same are correct, which certificate shall be 
signed by him in his official capacity, and be attested by the seal of 
such city or incorporated village, one of which copies he shall forth¬ 
with deliver to the recorder of the county, whose duty it shall be, 
having first made a record thereof in the proper books of record, to 
file and preserve the same, and the other of said copies shall be, by 
such clerk, forwarded to the secretary of state. 

Sec. 685. Notice of filing of petition to enjoin. If the clerk, 
within sixty days from the date of the filing of such transcript, map 
or plat and petition in his office, shall receive notice from any per¬ 
son interested, that he has filed a petition to the court or judge to 
enjoin all further proceedings, he shall not then report to the council 
such transcript, map or plat and petition filed with him, until after 
the final hearing and disposition of said petition. 

Sec. 686. Notice of order of dismission, etc. If the court or 
judge shall make an order dismissing such petition, the clerk of the 
county shall then immediately notify, in writing, the clerk of the cor¬ 
poration of the order made, and the clerk shall then at the next regu¬ 
lar meeting of the council, report to the same such transcript, map or 
plat and petition accompanying the-same, as if no such petition had 
been filed. 


[174] 

Sec, 687. Stay of proceedings on order enjoining. If the order 
of the court or judge be enjoining said clerk from making such report 
to the council as before provided, a certified copy of such order shall 
he immediately made by the proper officer of the court, and delivered 
to said clerk of the corporation, who shall file the same with such 
transcript, map or plat and petition, and preserve the same in his 
office, and thereupon no further proceedings shall he had in the matter ; 
hut such order of the court or judge shall not operate as a bar to any 
future application for the foregoing purpose to the commissioners of 
the county. 

Sec. 688. Effect of acceptance of annexation. So soon as said 
resolution or ordinance, accepting such annexation, has been adopted, 
the said territory shall be deemed and taken to be a part and parcel of 
the city or incorporated village, and the inhabitants residing thereon 
shall have and enjoy all the rights and privileges of the inhabitants 
within the original limits of such city or incorporated village. 

Sec. 689. Proceedings when territory lies in two or more coun¬ 
ties. Where the corporation is situate in two or more counties, or 
where the territory to be annexed is situate in a different county 
from that in which the corporation or some part of it is situate, the 
proceedings, so far as practicable, shall be as directed in sections 
twenty-five and twenty-six of chapter two. 


CHAPTER LVI. 

ANNEXATION ON THE APPLICATION OF THE CORPORATION. 1 


Section. 

690. Annexation on application of corpora¬ 

tion. 

691. Ordinance for annexation. 

692. How application to be made. 

693. Proceedings on petition. 


Section. 

694. Proceedings where territory lies in sev¬ 

eral counties, etc. 

695. Effect of annexation completed. 

696. Unnoticed errors and irregularities not 

to vitiate annexation. 


Sec. 690. Annexation on application of corporation. When 
any municipal corporation, not an incorporated village for special 


i Act of 1852, § 14; February 15,1867; 64 O. L. 14. 

Proceedings to annex contiguous territory to the corporate limits of a 
town, in pursuance of the 14th section of the act to provide for the organi¬ 
zation of cities and incorporated villages (Swan’s Rev. Stat. 959), are not 
in contravention of the provisions of the Constitution. Powers v. Commis¬ 
sioners of Wood County , 8 O. S. 285. Swan, J.: “There is no constitutional 
provision upon this subject. The statute relating to a vote by the citi¬ 
zens of a municipal corporation, upon the question whether contiguous 
territory shall be annexed to the town, is simply for the purpose of de¬ 
termining whether an application shall be made to the County Commis¬ 
sioners to annex the territory; and they, finally, after hearing the parties 
in interest, decide upon the public policy of making the annexation. No 
right of property is involved or determined by the vote contemplated by 
the statute. 

“The property, if annexed, will be subject to taxation to pay a prior 
indebtedness of the town of Perrysburg; and it is, therefore, claimed that 
private property will be thus taken for public purposes without compen- 




purposes, shall desire to enlarge its corporate limits by the annexation 
of contiguous territory, it shall be done in the following manner : 

Sec. 691. Ordinance for annexation. The council of the corpo¬ 
ration, by the vote of not less than a majority of the members elected, 
shall pass an ordinance authorizing such annexation to be made, and 
directing the solicitor of the corporation, or some one else to he 
named in the ordinance, to prosecute the proceedings necessary to effect 
such annexation. 

Sec. 692. How application to be made. Application for such 
purpose shall be by petition, in writing, of the corporation to the 
commissioners of the proper county, which petition shall set forth 
that under an ordinance of the council duly and legally passed, the 
territory therein described was authorized to be annexed to the corpo¬ 
ration, and shall accurately describe such territory and be accompanied 
by an accurate map or plat thereof. 

Sec. 693. Proceedings on petition. Upon such petition being 
presented to the commissioners, like proceedings thereon shall be had, 
in all respects, so far as apjfiicable, as are required under the provi¬ 
sions of chapter fifty-five. 

Sec. 694 Proceedings where territory lies in several counties. 
Where the corporation is situated in two or more counties, or when 
the territory to be annexed is situated in a different county from that 
in which the corporation or some part of it is situated, the proceed- 


sation. That injustice may be, and has, sometimes, been done by the an¬ 
nexation of territory to a town which has contracted an improvident 
debt, is, no doubt, true; and, sometimes, and perhaps more frequently, the 
owners of contiguous territory have had the benefit, by reflected value 
and convenience, of expenditures for which they have not contributed 
anything. The question is one beyond the reach of practical considera¬ 
tion, in the absence of any statute; and it would require a very artificial 
and unsound mode of reasoning to hold that territory could not be an¬ 
nexed to a town which owed debts, until the owners of such territory 
were paid a compensation in money fora proportional part of such debts, 
on the ground that the property annexed was condemned for public use.’’ 
11 . 

By the original charter of the city of Toledo, it was bounded on the 
southeast by the center of the Maumee river, which is a navigable stream. 
Upon the petition of the corporation, pursuant to the provisions of the 
14th section of the act to provide for the organization of cities and incor- 
p villages, the County Commissioners of Lucas county ordered an 

extension of its limits so as to include an unincorporated village and other 
adjoining lands on the southeast side of the river: Held , 

That the territory so annexed was contiguous to the original city. 
Hlanchard v. JBissell , 11 O. S. 96. 

That such annexation might be ordered without the consent and 
against the remonstrance of a majority of the persons residing on the 
annexed territory. Ib. 

Lands thus annexed are liable to local taxation on account of pre-ex¬ 
isting city debts, lb. 

An order of annexation made by the County Commissioners in the ex¬ 
ercise of jurisdiction acquired pursuant to statute, though liable to be 
reviewed and set aside by the Court of Common Pleas, is not void, and 
can not be collaterally impeached, lb. 



[176] 

ings shall be in the county in which the territory to he annexed, or 
some part of it, is situate. 

Sec. 695. Effect of annexation completed. When the annexation 
of such described territory has been completed, the same shall in law 
be deemed and held to be included in and constitute a part of such 
municipal corporation, and the inhabitants residing thereon shall have 
and enjoy all the rights and privileges of the inhabitants residing 
within the original limits of the corporation. 

Sec. 696. Unnoticed, errors and irregularities not to vitiate an¬ 
nexation . When any addition has been made to any corporation, and 
the same has been recognized as a part thereof, and has been taxed, 
and taxes thereon paid, and subjected to the ordinances and the author¬ 
ity of the council, without objection, such addition shall be deemed 
part of the corporation, and the inhabitants residing thereon citizens 
thereof, notwithstanding any errors, irregularities or defects in making 
such addition. 


CHAPTER LVII. 

ANNEXATION OF ONE MUNICIPAL CORPORATION TO ANOTHER MUNICIPAL 

CORPORATION. 1 

Section. Section. 

. 697. Annexation of contiguous corporations. 703. Transcripts to be filed in office of recor- 

698. Submission to vote of electors. der. 

699. Such submission by ordinances. 704. Annexation complete, etc. 

700. Effect of affirmative vote. 705. One government, etc., for both corpora- 

701. Commissioners to arrange terms, etc. tions. 

702. Approval by ordinances. 

Sec. 697. Annexation of contiguous corporations. When any 
municipal corporation the territory of which shall be contiguous and 
adjoining the territory of another municipal corporation, shall desire 
to be annexed to such other corporation, such annexation shall be ef¬ 
fected in the following manner : 

Sec. 698. Submission to vote of electors. The trustees or council 
of the corporation proposing such annexation shall submit the ques¬ 
tion of such annexation to the qualified electors thereof, and the trustees 
or council of the corporation to which the annexation is proposed to 
be made shall also submit the same question to its qualified voters. 

Sec. 699. Such submission by ordinances. Such submission shall 
be by ordinances adopted by the trustees or council of each corporation 
at least thirty days prior to the annual April or October election, at 
which election the vote shall be taken, and the ordinances shall each 
prescribe the manner in which such submission shall be made, and 
they shall be published in each corporation, by posters or otherwise, 
in such manner as the respective trustees or councils may deem most 
expedient, for the period of at least twenty days prior to the day fixed 
for such election. 


i Act of 1852, §§ 3-5, $ 15, § 16. 




[177] 


Sec. 700. Effect of affirmative vote. If a majority of the quali¬ 
fied electors of each corporation voting on the question so submitted, 
at the same election, be in favor of such annexation, the trustees or 
council of each shall thereupon, within a reasonable time, cause the 
result to be certified to the other corporation. 

Sec. 701. Commissioners to arrange terms, etc. The trustees or 
council of each corporation shall then appoint, by resolution or ordi¬ 
nance, three commissioners, whose duty it shall be to arrange the 
terms and conditions of such annexation, and report the result of their 
action, when agreed upon, to the trustees or council of their respect¬ 
ive corporations. 

Sec. 702. Approval by ordinances. When the report of such 
commissioners shall be approved by an ordinance passed by each cor¬ 
poration, certified copies thereof, signed by the presiding officer of 
the trustees or council of each corporation, and the respective clerks 
thereof, and attested by the corporate seal of each, shall be filed in 
the office of the clerk of the corporation to which such annexation is 
proposed to be made. 

Sec. 703. Transcripts to be filed in office of recorder. It shall 
then be the duty of the clerk, under the direction of the corporation, 
to make out and certify two transcripts of all the ordinances, abstracts 
of the returns of the votes, and other papers relating to such annexa¬ 
tion, one of which shall be filed in the office of the recorder of the 
county, who, having made a record thereof, shall file and preserve the 
same ; and the other shall be forwarded by said clerk to the secretary 
of state. 

Sec. 704. Annexation complete, etc. So soon as said transcripts 
shall be certified, delivered and forwarded, the annexation shall be 
deemed complete; and it shall be lawful for the corporation to which 
the annexation has been made, to pass such ordinances as will carry 
into effect the terms thereof, so far as the same shall not be inconsist¬ 
ent with this act and with the regular and proper government of the 
corporation under the provisions thereof, and any part of such terms so 
inconsistent shall be deemed void; but their nullity shall in no man¬ 
ner affect such annexation. 

Sec. 705. One government, etc., for both corporations. When 
the annexation has been completed, the two former corporations shall 
thereafter be governed as one, embracing the territory of each; and 
the inhabitants of all such territory shall have equal rights and privi¬ 
leges ; but such annexation shall not affect, or in any wise impair any 
rights or liabilities existing at the time of the annexation, either in 
favor of or against said corporations; and suits founded upon such 
rights and liabilities may be commenced, and pending suits prose¬ 
cuted and carried to final judgment and execution, the same as though 
such annexation had not taken place. 

12 


[178] 


CHAPTER LVIII 


SURRENDER OF MUNICIPAL RIGHTS. 1 


Section. 


706. Surrender of municipal rights. 

707. Petition therefor. 


Section. 

713. Certified transcripts to be made, etc. 


708. Notice, etc., of election. 


714. Officers, etc., to continue until next 
election. 


709. What the ballots shall contain. 

710. Poll-books and tally sheet. 


715. Villages may surrender in like manner. 


716. Surrender not to affect accrued rights. 


711. To be opened, etc., by council. 

712. Declaration on affirmative vote. 


717. Disposition of taxes, etc., due at time 
of surrender. 


Sec. 706. Surrender of municipal rights. Any city of the sec¬ 
ond class may surrender its corporate rights and be reduced to the 
grade of an incorporated village, in the following manner : 

Sec. 707. Petition therefor. A petition for such purpose, signed 
by at least one hundred of the freehold electors of the corporation, 
shall be presented to the council, and it shall set forth that it is the 
desire of a majority of the citizens of the corporation to surrender 
their corporate rights and be reduced to the grade of an incorporated 
village, and it shall pray that an election be held to determine the 
sense of the legal voters upon the subject. 

Sec. 708. Notice, etc., of election. The council shall thereupon 
fix upon a day and place for holding such election, and shall cause the 
clerk of the corporation to give notice thereof and the object of such 
election, in one or more newspapers published, and by posters set up in 
five or more public places, within the corporation, for the period of not 
less than twenty days next prior to the day of holding such election. 

Sec. 709. What the ballots shall contain. The ballots cast at 
said election shall contain the words “ for surrender,” or “ against sur¬ 
render,” and such election shall be held and conducted in the same 
manner and by the same officers as other elections in the corporation, 
and the laws of the state regulating elections shall govern the same so 
far as applicable. 

Sec. 710. Poll-books and tally sheet. The officers holding such 
election shall, upon the close of the polls and counting out the ballots, 
forthwith certify and cause to be delivered to the clerk of the corpora¬ 
tion, in a sealed envelope having indorsed thereon the nature of its 
contents, the poll-book and tally sheet of such election. 

Sec. 711. To be opened, etc., by council. The clerk, upon receiv¬ 
ing such poll-book, shall file and preserve the same in his office until 
the next regular meeting of the council, and the council at such meet¬ 
ing shall cause the said poll-book to be opened and the result of such 
election to be entered on its journal. 

Sec. 712. Declaration on affirmative vote. If the majority of 
votes cast at said election shall be “for surrender,” then the council 
shall, by resolution, declare in effect that, by the determination of legal 
voters, at a special election held for such purpose, the corporate rights 

i Act of March 10, 1856 (4 Curwen, ch. 1658); May 1,1857 (4 Curvven, 


ch. 1740.) 



[179] 


of such corporation are surrendered, and such city is reduced to the 
giade of an incorporated village, and shall thereafter he known as the 
incorporated village of --. 

Sec. 713. Certified transcripts to be made , etc. The clerk shall 
thereupon cause two certified transcripts of said resolution to be made 
out, one of which he shall forthwith deliver to the recorder of the 
county, and which shall be by him recorded in the proper book of rec¬ 
ords in his office, and the other shall be, by said clerk, forwarded to 
the secretary of state. 

Sec. 714. Officers , etc., to continue till next election. All the of¬ 
ficers elected or chosen as officers of such corporation, shall continue 
in office and perform their duties as though no such surrender had 
been made until the next regular election, and until the officers of the 
new corporation are elected and qualified, and the wards of such city 
corporation shall remain and the ordinances thereof shall continue in 
force, except so far as such ordinances may be inconsistent with the 
powers granted incorporated villages, until changed or repealed by 
the council of the new corporation. 

. Sec. 715. Villages may surrender in like manner. Incorporated 
villages may surrender their corporate rights, or may be reduced to 
the grade of incorporated villages for special purposes, and incorpo¬ 
rated villages for special purposes may surrender their corporate rights 
in the same maimer, so far as applicable, as provided in the preceding 
sections in this chapter for the surrender of corporate rights by cities 
of the second class, and the duties of all officers in respect thereto, 
and the proceedings thereafter, so far as applicable, shall be the same 
as prescribed in the preceding section. Where the petition is by the 
electors of an incorporated village for special purposes, it shall be 
sufficient if signed by fifty of such electors. 

Sec, 716. Surrender not to affect accrued rights. The surrender 
of corporate rights as herein provided, shall not be held to affect rights 
accrued or liabilities incurred, by such corporations, or the power to 
settle claims, dispose of property, levy and collect taxes to discharge 
liabilities incurred, but the same shall remain in full force and effect, 
as also the corporate character of such city, or incorporated village, or 
incorporated village for special purposes, in respect thereto, as though 
no surrender had been made. 

Sec. 717. Disposition of taxes, etc., due at time of surrender. 
All taxes which, at the time of such surrender, remain due and un¬ 
paid, and all moneys in the treasury of such city, incorporated vil¬ 
lage, or incorporated village for special purposes, shall be collected and 
applied to the objects for which the same were raised ; and in case any 
moneys shall remain on hand after the debts and liabilities of the cor¬ 
poration shall have been discharged, the same shall be paid into the 
treasury of the incorporated village, or incorporated village for special 
purposes, or into the common school fund of the district embracing 
such corporation, as the case may be, and all property owned by the 
corporation, at the time of such surrender, by purchase or otherwise, 



[ 180 ] 

shall become the property of the new corporation or of the school dis 
trict, as the case may be, and the title thereto vest accordingly. 


CHAPTER LIX. 

DUTIES OF STATE OFFICERS AND RIGHT OF VISITATION. 1 
Section. Section. 

718. Duty of state officers to ascertain grade 722. Statement thereof to be submitted in his 

of cities, etc. annual report. 

719. Secretary of state to cause publication 723. Declaration of advancement or reduction 

thereof. of grade to be published. 

720. Advance of grade to be submitted to 724. Right of visitation by governor, legisla- 

vote. ture, etc. 

721. Papers to be preserved in office of secre¬ 

tary of state. 

Sec. 718. Duty of state officers to ascertain grade of cities , etc. 
it shall be the duty of the governor, auditor and secretary of state, or 
any two of them, at the time of ascertaining the ratio of representa¬ 
tion, as required by the eleventh section of the eleventh article of the 
constitution of this state, to ascertain what cities of the second class 
are entitled to become cities of the first class, and what incorporated 
villages are entitled to become cities, and their proper class, and what 
incorporated villages for special purposes are entitled to become in¬ 
corporated villages. 

Sec. 719. Secretary of state to cause publication thereof . The 
secretary of state shall cause a statement thereof to be prepared, which 
statement he shall cause to be published in some newspaper in Co¬ 
lumbus, and also in some newspaper published in each of the cities, 
incorporated villages, and incorporated villages for special purposes, 
which shall contain the required population to be advanced in grade, 
and a copy of said statement shall also be transmitted by the secretary 
of state to the general assembly, at its next session thereafter. 

Sec. 720. Advance of grade to be submitted to vote. So soon as 
the said statement has been published, the council of any corporation 
which, according to such statement, shall have the required popula¬ 
tion to be advanced to a corporation of the next higher grade, shall 
have the power, at any time, by ordinance passed for such purpose, to 
submit to the voters of the corporation, the question whether such 
corporation shall be advanced to the grade of the next higher corpo¬ 
ration ; and such election shall be conducted and the proceedings 
thereafter had, in case the result of the election be in favor of such 
advancement, in all respects, as provided in chapters three and four of 
this act. 

Sec. 721. Papers to be preserved in office of secretary of state. 
The secretary of state shall receive and preserve in his office all pa¬ 
pers transmitted to him in relation to the organization of incorporated 
villages for special purposes, incorporated villages, the annexation of 


Act of 1852, $ 42, as amended March 25,1854. 




[ 181 ] 


territory to any city or incorporated village, and the consolidation or' 
advancement or reduction in grade of municipal corporations. 

Sec. 722. Statement thereof to be submitted, in his annual report. 
He shall also submit, in his annual report to the general assembly, a 
statement showing the names, location and limits of each incorporated 
village for special purposes, and each incorporated village organized 
under this act during the period embraced in said report; and also all 
incorporated villages and cities, the limits of which have been in¬ 
creased, and the limits so added, and the corporations which have been 
advanced or reduced in grade during the same period. 

Sec. 723. Declaration of advancement or reduction of grade 
to be published. Whenever any incorporated village for special pur¬ 
poses has been advanced to the grade of an incorporated village, in the 
manner provided in chapter three, or any incorporated village has been 
advanced to the grade of a city of the second class, or any city of the 
second class has been advanced to the grade of a city of the first class, 
in the manner provided in chapter four, or any municipal corporation 
has been reduced to a corporation of a lower degree, the secretary of 
state, upon requisite evidence of the fact being filed in his office, shall 
cause a notice to be published in one of the newspapers of Columbus, 
declaring such municipal corporation has been advanced or reduced in 
grade as the case may be. 

Sec. 724. Right of visitationby governor, legislature, etc. The 
general assembly of Ohio, by a committee, the governor of the state, 
the council of the corporation by a committee, the mayor or police 
judge of the corporation, the judges of any of the courts of this state, 
and the grand jury of the county, may, at any time, visit and inspect 
any of the benevolent or correctional institutions established by any 
municipal corporation, and examine the books and accounts of the 
same. 


CHAPTER LX. 

SAVING OF EXISTING RIGHTS. 1 


Section. Section. 

725. Existing rights, etc., not to be changed 728. Officers of corporations to continue dur- 

by this act. ing their terms, etc. 

726. Powers and duties in relation to election 729. Ordinances, etc., to continue in force. 

of justices, etc., to remain until 730. Acts, courts, etc., not inconsistent with 

changed by law. this act, to remain until changed by 

727. Vested powers in relation to benevolent proper authority. 

institutions, etc., to continue. 

Sec. 725. Existing rights , etc,., not to be changed by this act. All 
rights and property, of every kind and description, which were vested 
in any municipal corporation under its former organization, shall be 
deemed and held to be vested in the same municipal corporation under 
the organization made by this act; and no rights or liabilities, either 
in favor of or against such corporation, existing at the time of taking 


i Act of 1852, $$ 106,107,108, 109. 




[ 182 ] 

effect of this act, and no suit or prosecution of any kind, shall be in 
any manner affected by such change, but the same shall stand or pro¬ 
gress as if no such change had been made ; provided, that where a 
different remedy is given in this act, which can be made applicable to 
any rights existing at the time of its passage, the same shall be deemed 
cumulative to the remedies before provided, and may be used accord¬ 
ingly. 

Sec. 726. Powers and duties in relation to election of justices, 
etc., to remain until changed by law. Any municipal corporation 
which, under its former organization, held or exercised any power or 
duty, in ordering or directing the election of justices of the peace, con¬ 
stables, or other township officers, shall continue to hold and exercise 
such power and duty until otherwise provided by law. 

Sec. 727. Vested powers in relation to benevolent institutions , 
etc., to continue. Any municipal corporation in which, under its for¬ 
mer organization, any law or charter, regulating any literary, charita¬ 
ble or benevolent institution, vests any power appointing officers of 
supervision or control, shall continue to hold and possess the like 
power and authority in every respect. 

Sec. 728. Officers of corporations to continue during their terms , 
etc. The mayor, trustees, marshal, treasurer, and all officers elected 
by the people, or appointed by any municipal corporation, and all offi¬ 
cers of benevolent and other institutions, now in office, shall remain 
and continue in their respective offices, and perform the several duties 
thereof, under the provisions of this act, until the time shall expire 
for which they shall have been elected or appointed, and until their 
successors shall be chosen or appointed and qualified; but all such 
officers shall be subject to such rules and regulations touching their 
duties and compensation, as the proper authority of any municipal 
corporation may provide. 1 

Sec. 729. Ordinances, etc., to continue in force. All laws, ordi¬ 
nances and resolutions heretofore lawfully passed and adopted by the 
trustees or council, shall be, remain, and continue in force, until altered 
or repealed by the trustees or council established by this act. 

Sec. 730. Acts, courts, etc., not inconsistent with this act, to remain 
until changed by proper authority. All special acts in relation to any 
municipal corporation shall, so far as the same affects the particular 
police regulations, or local affairs of any municipal corporation, in 
matters not inconsistent with this act, be and remain in force as by¬ 
laws and ordinances of the particular municipal corporation, until 
altered or repealed by the proper authority thereof. The police courts 
and mayor’s courts heretofore created and established, are hereby con¬ 
tinued, with the powers and jurisdictions conferred by this act. 


i The design of permitting an officer to hold his office until his successor 
shall le elected and qualified , “ undoubtedly was, that ther*e should be no 
vacancy for the reasonable time that it would take to have the successor 
notified of his election and qualified.” Hitchcock, J., in State v. Croolcs, 
7 O. 2 pt. 221-226. 



[ 183 ] 

NOTE.— 1 The power of the courts, as courts of equity, to enforce spe¬ 
cific performance, and to interfere by injunction or restraining; order, as 
between the municipal corporation and others, was considered in a num¬ 
ber of the cases to which reference has been made in this volume. Thus, in 
the case of Cincinnati v. Cincinnati Street R. Co., ante, 98 et seq ., and the 
facts of which are sufficiently stated at that place, Judge Taft said: 

“Is, then, the city entitled to have this obligation enforced by a decree 
for specific performance? 

“The contract sought to be enforced is peculiar, but it is specific, and 
the thing required under it and the act of congress is easily understood, 
and calls for no particular skill to perform it. It is simply to furnish on 
the cars, tickets in packages of twenty-five, for not more than $1.03. It 
involves no new duties in kind, but precisely the same care and responsi¬ 
bility to which the companies have subjected themselves, for at least a 
large part of their past existence. The companies have been in full pos¬ 
session of all the advantages of the contract. 

“The city is the representative of the public, and as such, had the right 
to require this stipulation as part of the contract. The stipulation is in 
favor of the public. If the companies are allowed to violate it by exact¬ 
ing from each passenger a few cents more than they are entitled to, or by 
refusing to sell packages according to the contract, there can be no rem¬ 
edy to the parties who suffer the wrong, except by a multiplicity of suits 
for small sums, which could not be fairly considered an adequate remedy, 
and which falls under a legitimate head of equity jurisdiction. Sutton 
liar. Imp. Co. v. Hitch ins, 9 E. L. & Eq. It., 43-4. 

“I think that the nature of this stipulation is such, that specific per¬ 
formance is the only adequate remedy for its violation. 

“Judge Story says: ‘The ground of the jurisdiction of courts of equity 
to decree specific performance of agreements is. that a court of law is in¬ 
adequate to decree a specific performance, and can relieve the injured 
party only by a compensation in damages, which, in many cases, would 
fall far short of the redress which his situation might require. Wherever, 
therefore, the party wants the thing in specie, and he can not otherwise be 
fully compensated, courts of equity will grant him a specific perform¬ 
ance.’ 1 Story’s Equity, sec. 716. 

“Such is the general principle on which courts of equity act in cases of 
this kind. ‘ It does not proceed upon any distinction between real estate 
and personal estate; but upon the ground that damages at law may not, 
in the particular case, afford a complete remedy.’ But, as in contracts 
relating to personal estate and personal acts, damages at law do, in most 
instances, afford an adequate remedy, the cases for specific performance 
generally relate to land. 

“ Whether these contracts be considered as relating to an easement in 
real estate, or to personal estate, or personal acts, no action for damages 
at law could be an adequate remedy. 

“This case I think distinguishable from that of the Port Clinton Railroad 
Co. v. The Cleveland and Toledo Railroad Co. (13 O. S. 544), ill the impor¬ 
tant circumstance that there is no continuous skill, or unusual risk, or 
ability, or responsibility, required in the performance of this contract. 
There is not even any outlay of capital required. It is simply a question 
of will. 

“ In the Port Clinton Railroad Company case, it was sought to compel the 
Cleveland and Toledo Railroad Company, to equip, repair, and operate a 
railroad. After a very discriminating and able opinion, the court, in that 
case, said : ‘We think enough has been said to show that the propriety 
of the exercise of the power to enforce specific performance, in cases like 
the present, is exceedingly questionable, and would require extreme care 
and delicacy in its application. If permissible at all, the demand for the 
exercise of the power should be stringent, and the circumstances of the 
case so peculiar, as to authorize some limit to the extent and operations of 
any orders which might be made.’ 


[184] 

“The court then proceeded to examine the facts of the case, and found 
that the Port Clinton Company, the plaintiff in one of the cases, (for 
thej-e were two cases comprised in one decision), had a very dubious case 
in equity, having nothing of any pecuniary value, in rights or franchises, 
and the court ‘could not shut their eyes to the fact, transparent in the 
testimony, that the Port Clinton Company itself, and the operations in its 
name, were a device and a means to accomplish an unlawful purpose.’ 
And the court concluded that the plaintiff had ‘no such standing in the 
court, or any such interests to be protected, as would support its claim 
for relief.’ 

“ And as to the trustees of Portland township, who were plaintiffs in the 
other case, the court found the contract upon which they relied not valid, 
to give them any right to the thing,' for which they sought the remedy; 
so that the court actually decided the case, almost, if not quite, independ¬ 
ently of the question of remedy. Nor did the court positively decide, 
that if the right had been clear, ‘and the demand for the exercise of the 
power had been stringent,’ they might not, for a limited time, even ope¬ 
rate a railroad. The opinion, however, shows that the court would re¬ 
quire a very strong and a verj^ peculiar case, before it would venture upon 
so difficult a task. 

“I have examined with some care the opinion in that case and the cases 
cited and commented upon by the learned judge who gave it. I have 
found it altogether the most satisfactory discussion of the cases on the 
subject, with which I have met. But I am not able to derive from it evi¬ 
dence, that the Supreme Court would deny an injunction in a case like 
this. 

“It seems to me very clear, that there can be no adequate remedy for a 
violation of this stipulation, but specific performance. Suppose the city 
were to receive heavy damages from the company ? Or suppose it were 
possible to estimate accurately the amount of moneys which had been or 
might be taken from the passengers in violation of this contract, how 
could the city distribute the fund either to those from whom it was taken, 
or apportion it among those who form part of the public, and who suffer 
damages by this breach of contract? 

“Any other adequate remedy seems to me quite out of the question, un¬ 
less it could be reached by mandamus. The point has not been made, that 
this petition should not be sustained as a petition for specific perform¬ 
ance, on the ground that a mandamus would be an adequate legal remedy. 

“If this be a case for specific performance of a contract, and if it be 
also a case calling for a provisional order, the delay which would be in¬ 
cident to relief by mandamus , might be a sufficient reason for entertaining 
jurisdiction in this court. 

“ 2. But is this a case for the provisional remedy by injunction at the 
commencement of the suit? 

“ It seems to me that it would be quite impossible to make any even 
approximate estimate of the damages which would arise from the viola¬ 
tion of the contract complained of, and it would be equally impossible to 
ascertain what should be done with them, when recovered. 

“On the other hand, if an injunction is allowed, and the city gives the 
proper bond, and it shall turn out that the injunction is wrongly granted, 
the defendants will be able at least to approximate the amount of their 
loss through the limitation on their fares for the time; and when ascer¬ 
tained, it would be easy to know who should pay, and who should receive 
the money. 

“Another consideration in this connection is, that the wrong com¬ 
plained of in the present case arises from an abuse of corporate powers— 
powers granted by the public, and to be held and exercised by these 
corporations for the benefit of the public, as well as for the private profit 
of the stockholders. 

“ It is said by the Supreme Court, in Waller v. Mad River Railroad Co. y 
8 0.39: ‘The great recent increase of private corporations has led our 


[185] 

courts of chancery into an enlarging jurisdiction over them, and it is now 
well settled that injunctions will be granted to prevent the abuse of their 
powers to the injury of others.’ The same principle is laid down in 2 
Story’s Equity, .sec. 627, and in Coates v. The Clarence Railroad Co., 1 Russ 
& My 1 ne, 181. 

** It is true that in the Port Clinton case, a corporation was before the 
court as defendant, as is suggested by the counsel for defendants. Rut the 
court found there was no good case in law or equity, made out against the 
defendant, and no abuse of corporate powers by the defendant corporation, 
of which the plaintiffs had any ground in law or equity to complain. 

“The objection to the mandatory form of the order prayed for, has not 
been seriously urged. Mr. Redfield, in his work on Railways, says, p. 511: 
‘It has been held that it is no objection to an injunction that it was in 
effect of a mandatory character; ’ and on p. 512 he says: ‘ Notwithstand¬ 
ing the practice has been questioned sometimes, it has continued to receive 
the countenance of the courts of equity. A mandatory order is nothing 
more than a decree of specific performance, which is every day’s practice 
in courts of equity, and which is seldom denied, unless where the law is 
perfectly adequate.’ Spencer v. Loudon , etc.. Railways , 1 Railway Cases, 
167, 171. 

“ As I have already remarked, this case is peculiar, and I find none in the 
books precisely like.it. But, upon the best consideration I have been able 
to give to the subject, aided by very able and well considered arguments, 
and with the assistance and concurrence of my brethren of the bench, 
who, at my request, sat with me at the hearing—Judge Storer hearing all 
the arguments, and the other judge hearing a large portion of them—I have 
come to the conclusion that the case falls within the equity jurisdiction of 
the court, and that the plaintiff is entitled to the remedy sought. The sim¬ 
plest form of the order would be mandatory, requiring the companies to 
keep on their cars package tickets for sale, at the rate of twenty-five for 
§1.03. But, to conform with the definition of an injunction given in the 
code, I will allow a provisional order restraining the defendants from selling 
tickets in packages of twenty-five for more than §1.03, and from demand¬ 
ing or collecting fare from any person to whom they shall refuse to sell, on 
the cars, package tickets at that rate, such person having tendered to their 
conductor or agent on the car, §1.03 in lawful money for such package; 
and from hindering, while they so refuse, any such person from riding on 
their cars:—upon the city giving bond in the sum of §20,000 to each com¬ 
pany, to indemnify it for all it might lose, if it should turn out that I am 
wrong, and that the injunction ought not to have been issued.” 

By a resolution of the city council, adopted January 29, 1869, it was re¬ 
solved, that the city auditor should be authorized and instructed to con¬ 
tract with James E. Cox, for the use of the public lamp-posts in the streets 
of the city, for advertising purposes, for the term of five years, at the sum of 
three dollars and fifty cents per year for each post so used by him. It ap¬ 
peared, from a model, that the advertising instrument was about eighteen 
inches in length, of octangular shape, and would inclose the entire sur¬ 
face of the post within its dimensions. It was furnished with small re¬ 
cesses, in which advertisements might be inserted. Each instrument 
might contain forty or fifty advertisements, representing separate occupa¬ 
tions and trades. Held, per Storer, J., that it was beyond the power of the 
city council to authorize such contract to be made, and on the petition of 
property-holders in the city, a proper case was presented where the city 
auditor "could be restrained from executing the contract. Shillitov. Cin¬ 
cinnati , Superior Court of Cincinnati, 1869. MS. 

In the case of Fenton v. Cincinnati , ante , 154, Storer. J., said: “ As the in¬ 
evitable result of the work thus projected, we are satisfied from the proofs 
before us, as well as the condition of the premises, the plaintilf’s building 
■will fall, or be so impaired in its integrity from the cracking of its walls, 
or the sinking of the soil, that it will become necessary to take it down 
and re-erect it. Should such an event occur, we must hold the defendants 




« 


[ 186 ] 

liable in damages. They have not only hazarded the safety of all the 
structures along the line of the alley by the excavation, but by digging 
below the surface, beyond the point authorized by law, have assumed all 
the responsibility of the result. If, when an injury is done, the individual 
suffering may recover to the extent of his loss, it follows* he must have 
the additional right to invoke our preventive aid by injunction to secure 
his possession, ft can not be claimed that a corporation possesses a higher 
immunity from liability than an individual, when the question is made 
how far the owner and proprietor of a dwelling-house is to be protected in 
its enjoyment. He may well ask the judicial tribunals to defend his 
domicil from individual as well as public aggression.” 


CHAPTER LXI. 

ACTS REPEALED. 

Section. Section. 

731. List of acts repealed. 732. When this act to take effect. 

Sec. 731. List of acts repealed. The following 'acts and parts of 
acts are hereby repealed : 

An act to provide for the organization of cities and incorporated 
villages, passed May 3, 1852. 3 Curwen, ch. 1184. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852/’ 
passed March 30, 1859. 4 Curwen, ch. 1987. 

An act to amend “ an act to provide for the organization of cities 
and incorporated villages, passed May 3, 1852, and supplementary and 
amendatory to ‘ an act to provide for the organization of cities and in¬ 
corporated villages, passed March 11, A. D. 1853,’ ” passed April 28, 
1854. 4 Curwen, ch. 1460. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852,” 
passed March 6, 1857. 4 Curwen, ch.1681. 

An act to amend an act entitled “ an act to amend an act entitled 
‘ an act to provide for the organization of cities and incorporated vil¬ 
lages/ passed March 11, 1853,” passed April 12, 1858. 4 Cunven, 
ch. 1880. 

An act supplementary to the act entitled “ an act to provide for 
the organization of cities and incorporated villages, passed May 3, 
1852,” passed April 17, 1857. 4 Curwen, ch. 1787. 

An act supplementary to an act entitled “ an act to provide for the 
organization of cities and incorporated villages, passed May 3,1852,” 
passed April 5, 1856. 4 Curwen, ch. 1577. 

An act to amend an act entitled “ an act to amend an act entitled 
an act to provide for the organization of cities and incorporated vil¬ 
lages, passed March 11, 1853,” passed March 25, 1854. 4 Curwen, 
ch. 1438. 

An act to amend the forty-fourth section of an act entitled “ an act 
to provide for the organization of cities and incorporated villages, 
passed May 3, 1852,” passed April 2, 1859. 4 Curwen, ch. 2004. 





[187] 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages/’ passed March 11, 1853. 
3 Cur wen, ch. 1248. 

An act supplementary to the “ act to provide for the organization 
of cities and incorporated villages, passed May 3, 1852,” passed 
March 12, 1853. 3 Curwen, ch. 1251. 

An act to amend section fifty-four of the act entitled “ an act to pro¬ 
vide for the organization of cities and incorporated villages, passed 
May 3, 1852,” passed March 4, 1859. 4 Curwen, ch. 1933. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852,” 
passed May 1, 1854. 4 Curwen, ch. 1506. 

An act amendatory to an act entitled “ an act to provide for the or¬ 
ganization of cities and incorporated villages, passed May 3, 1852,” 
passed March 18, 1859. 4 Curwen, ch. 1456. 

An act to amend the seventy-first section of the act entitled “ an 
act to provide for the organization of cities and incorporated villages, 
passed March 1, 1852,” passed April 17, 1854. 4 Curwen, ch. 1451. 

An act to amend the sixty-first and seventy-seventh sections of the 
act entitled “ an act to provide for the organization of cities and incor¬ 
porated villages. And the thirteenth section of an act entitled an act 
to provide for the organization of cities and incorporated villages, 
passed March 11,1853,” passed April 29,1854. 4 Curwen, ch. 1470. 

An act supplementary to an act entitled. “ an act to provide for the 
organization of cities and incorporated villages, passed May 3, 1852,” 
passed April 8, 1856. 4 Curwen, ch. 1632. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852, and 
the several acts amendatory thereof and supplementary to said acts,” 
passed April 5, 1856. 4 Curwen, ch. 1571. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852, and 
the act amendatory thereto, passed March 11, 1853,” passed May 1, 
1854. 4 Curwen, ch. 1475. 

An act to amend section six of an act to amend the act entitled 
“ an act to provide for the organization of cities and incorporated vil¬ 
lages, passed March 11, 1853,” passed March 28, 1859. 4 Curwen, 
ch. 1978. 

An act to amend the eighth section of an act entitled “ an act to 
amend the act entitled an act to provide for the organization of cities 
and incorporated villages,” passed March 5, 1856. 4 Curwen, ch. 

1541. 

An act to amend the act entitled “ an act to amend the act entitled 
an act to provide for the organization of cities and incorporated vil¬ 
lages, passed March 11, 1853, and supplementary to the same,” 
passed March 30, 1857. 4 Curwen, ch. 1702. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, and the act amendatory 


[ 188 ] 

thereto, passed March 11, 1853,” passed April 29, 1854. 4 Curwen, 
ch. 1463. 

An act to amend the act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, and the act amendatory 
thereto, passed March 11, 1853,” passed April 8, 1856. 4 Curwen, 
ch. 1598. 

An act supplementary to the act “ to provide for the organization 
of cities and incorporated villages, passed May 3, 1852,” passed 
March 12, 1853. 4 Curwen, ch. 1251. 

An act providing for the certifying of certain elections, passed 
April 3, 1837. 1 Curwen, ch. 163. 

An act supplementary to an act entitled “ an act to amend an act to 
provide for the organization of cities and incorporated villages, passed 
March 11, 1853,” passed April 5, 1854. 4 Curwen, ch. 1439. 

An act to regulate the making of cellars, excavations and founda¬ 
tions, passed April 28, 1854. 4 Curwen, ch. 1462. 

An act supplementary to the act entitled “ an act to provide for the 
organization of cities and incorporated villages, passed May 3, 1852, 
and ‘ an act to amend the act entitled an act to provide for the organ¬ 
ization of cities and incorporated villages,’ passed March 11, 1853,” 
passed May 1, 1854. 4 Curwen, ch. 1475. 

An act supplementary to “ an act to provide for the organization of 
cities and incorporated villages,” passed May 1, 1854. 4 Curwen, 

ch. 1511. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852, and 
the several acts amendatory thereof and supplementary to said acts,” 
passed April 5, 1856. 4 Curwen, ch. 1572. 

An act to amend a certain act therein named, passed April 8, 1856. 
4 Curwen, ch. 1647. 

An act supplementary to an act entitled “ an act supplementary to 
an act entiltled ‘ an act to provide for the organization of cities and 
incoporated villages,’ passed May 3, 1852,” and the acts amendatory 
thereof and supplementary thereto, passed May 1, 1857. 4 Curwen, 

ch. 1740. 

An act supplementary to an act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3, 1852, 
and the acts amendatory thereof and supplementary thereto, passed 
March 10, 1856. 4 Curwen, ch. 1658. 

An act to amend “ an act to provide for the organization of cities 
and incorporated villages, passed May 2, 1852,” passed April 12, 
1858. 4 Curwen, 1856. 

An act amendatory and supplementary to an act passed April 5, 
1856, entitled “ an act to amend an act entitled an act to provide for 
the organization of cities and incorporated villages,” passed May 3, 
1852, and the several acts amendatory thereof and supplementary to 
said acts, passed April 12, 1858. 4 Curwen, ch. 1857. 

An act supplementary to an act to provide for the organization of 


[189] 


cities and incorporated villages, passed May 3, 1852, passed February 
23, 1858. 4 Curwen, ch. 1813. 

An act to authorize incorporated villages to take the enumeration 
of their inhabitants for the purpose of becoming cities of the second 
class, passed April 5, 1856. 4 Curwen, ch. 1571. 

An act supplementary to an act entitled “ an act defining the juris¬ 
diction and regulating the practice of probate courts,” passed April 3, 
1856. 4 Curwen, ch. 1567. 

An act supplementary to an act to provide for the organization of 
cities and incorporated villages, passed May 3, 1852, passed February 
28, 1859. 4 Curwen, ch. 1929. 

An act to provide for the appointment of police commissioners in 
cities of the first class, having a population exceeding eighty thou¬ 
sand inhabitants, and supplementary to an act entitled “ an act to pro¬ 
vide for the organization of cities and incorporated villages,” passed 
May 3,1852, and the other acts supplementary and amendatory thereto, 
passed March 14, 1859. 4 Curwen, ch. 1951. 

An act relating to cities of the first class, having a population ex¬ 
ceeding eighty thousand inhabitants, passed March 5, 1860. 4 Cur¬ 

wen, ch.2068. 

An act supplementary to the act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed March 11, 
1853, passed March 17, 1860. 4 Curwen, ch. 2096. 

An act to enable townships and incorporated villages to establish 
cemeteries common to both, passed March 17, 1860. 4 Curwen, ch. 

2095. 

An act authorizing city councils in cities of the first class, having 
a population less than eighty thousand and more than thirty-five thou¬ 
sand, to appoint inspectors of provisions and other articles, passed 
April 4, 1859. 4 Curwen, ch. 2014. 

An act to amend an act entitled “ an act to provide for the organi¬ 
zation of cities and incorporated villages,” passed May 3,1852, passed 
April 16, 1867. 64 O. L. 244. 

An act to amend section twenty-one of “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3, 1852, 
passed May 5, 1868. 65 O. L. 147. 

An act to amend the forty-seventh section of the act entitled “ an 
act to provide for the organization of cities and incorporated villages,” 
passed March 12,1862. 59 O. L. 23. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages,” passed May 3, 1852, 
passed February 5, 1861. 58 O. L. 6. 

An act to amend section fifty of an act entitled “ an act to provide 
for the organization of cities and incorporated villages,” passed May 
3, 1852, and to authorize the council of incorporated villages to levy 
a tax for police purposes, passed February 21, 1867. 64 O. L. 21. 

An act to further amend the sixty-first section of the act entitled “ an 
act to provide for the organization of cities and incorporated villages,” 


[190] 

passed May 3, 1852, and amended by an act passed April 29, 1854, 
passed February 9, 1863. 60 0. L. 4. 

An act to amend section sixty-nine of an act entitled “ an act to 
provide for the organization of cities and incorporated villages,” 
passed May 3, 1852, as amended March 25, 1862, and to repeal sec¬ 
tion one of the last named act; also further to define the duties of 
county treasurers, passed April 29, 1862. 59 0. L. 69. 

An act to amend section six (6) of “ an act to amend section sixty- 
nine (69) of an act entitled ‘ an act to provide for the organization of 
cities and incorporated villages,’ passed May 3, 1852, as amended 
March 25, 1862, and to repeal section one of the last named act; also 
further to define the duties of county treasurers, passed April 29, 
1862,” passed May 13, 1868. 65 O. L. 186. 

An act supplementary to an act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3, 1852, 
passed April 10, 1867. 64 O. L. 121. 

An act to amend section ninety-one of the act to provide for the or¬ 
ganization of cities and incorporated villages, passed May 3, 1852, 
passed March 28, 1861. 58 O. L. 46. 

An act to amend section number one hundred and two of the act en¬ 
titled “ an act to provide for the organization of cities and incorpora¬ 
ted villages,” passed May 3,1852, passed April 18,1862. 59 O. L. 55'. 

An act to amend section eighty-three of an act entitled “ an act to 
provide for the organization of cities and incorporated villages,” 
passed May 3, 1852, passed April 29, 1862. 59 O. L. 70. 

An act to amend section eighty-four of “ an act to provide for the 
incorporation [organization] of cities and incorporated villages,” 
passed May 3, 1852, passed April 10, 1867. 64 O. L. 121. 

An act to amend an act passed April 28, 1854, entitled “ an act to 
amend section twenty-five of an act to provide for the organization of 
cities and incorporated villages,” passed May 3, 1852, passed April 
16,1867. 64 O. L. 214. 

An act to amend an act entitled “ an act to enable justices of the 
peace to discharge the duties of police judges in certain cases,” passed 
February 21, 1862, passed April 17,1867. 64 O. L. 251. 

An act to amend an act therein named, passed March 21, 1861. 
58 O. L. 39. 

An act relating to cities of the first class having a population less 
than eighty thousand, passed March 1, 1861. 58 0. L. 25. 

An act to amend an act entitled an act relating to cities of the first 
class having a population less than eighty thousand, passed March 1, 
1861, passed May 3, 1861. 58 0. L. 114. 

An act to amend section one of an act entitled “ an act supple¬ 
mentary to an act to provide for the organization of cities and incor¬ 
porated villages,” passed April 12, 1865, passed April 3, 1867. 64 

0. L. 108. 

An act to amend an act entitled “ an act to amend section four of 
an act entitled an act supplementary to an act entitled an act to pro- 


[191] 

vide for the organization of cities and incorporated villages,” passed 
April 13, 1865, passed February 21, 1866. 63 0. L. 22. 

An act to amend an act entitled “ an act supplementary to an act 
entitled ‘ an act to provide for the organization of cities and incorpo¬ 
rated villages,’ ” passed March 29, 1859, as amended by an act passed 
March 25, 1864, passed March 23, 1866. 63 0. L. 49. 

. An act to amend section six of an act passed March 14, 1859, en¬ 
titled “ an act to provide for the appointment of police commissioners 
in cities of the first class having a population exceeding eighty thou¬ 
sand inhabitants,” and supplementary to an act entitled “ an act to 
provide for the organization of cities and incorporated villages,” passed 
May 3, 1852, and the other acts supplementary and amendatory thereto, 
and further amended February 17, 1864, passed March 9, 1866. 63 

0. L. 33. 

An act to license and regulate pawnbrokers in cities of the first 
and second class, passed March 13, 1863. 60 0. L. 16. 

An act to authorize the city councils to appoint inspectors of beef 
cattle, sheep, hogs, poultry, game, milk, milk cows, fresh meat and 
fresh fish, passed March 11, 1867. 64 0. L. 46. 

An act supplementary to the act to provide for the organization of 
cities and incorporated villages, passed May 3,1852, passed April 10, 
1861. 58 O. L. 92. 

An act supplementary to the act passed May 3, 1852, to provide for 
the organization of cities and incorporated villages, passed April 10, 
1861. 58 0. L. 77. 

An act supplementary to “ an act supplementary to the act passed 
May 3, 1852, to provide for the organization of cities and incorporated 
villages,” passed April 10, 1861, passed March 30,1864. 61 0. L. 88. 

An act to amend section one of “an act supplemental to an act 
passed May 3, 1852, to provide for the organization of cities and in¬ 
corporated villages,” passed March 31, 1864, passed April 12, 1865. 
62 O. L. 136. 

An act supplementary to an act passed May 3, 1852, to provide for 
the organization of cities and incorporated villages, passed March 31, 
1864. 61 0. L. 130. 

An act to amend an act entitled “ an act to amend an act entitled 
* an act to provide for the organization of cities and incorporated vil¬ 
lages,’ passed May 3, 1852, and the several acts amendatory thereof 
and supplementary to said act,” passed April 5, 1856, passed April 
3, 1863. 60 O. L. 51. 

An act to regulate the meetings of councils in cities of the first 
class, exceeding eighty thousand inhabitants, and to repeal sections 1, 
12, 14 and 17 of an act passed March 3, 1860, entitled “ an act re¬ 
lating to cities of the first class, having a population exceeding eighty 
thousand inhabitants, passed April 4, 1862. 59 0. L. 40. 

An act to regulate meetings of councils in cities of the first class, 
having a population exceeding one hundred thousand inhabitants, and 
to repeal section two of an act passed April 4, 1862, entitled “ an act 


[ 192 ] 

relating to cities of the first class, having a population exceeding 
eighty thousand inhabitants,” passed May 5, 1868. 65 0. L. 127. 

An act to create a board of health in any city, and to prevent the 
spread of diseases therein, passed March 29, 1867. 64 0. L. 76. 

An act supplementary to an act entitled “ an act to create a board 
of health in any city to prevent the spread of diseases therein,” 
passed March 29, 1867, passed April 13, 1867. 64 0. L. 147. 

An act to arrest the social evil in cities of the first class having 
over one hundred thousand inhabitants, passed April 16, 1867. 64 

0. L. 242. 

An act defining the duties and powers of the board of city im¬ 
provements, passed April 27, 1868. 65 0. L. 110. 

An act supplementary to the act to provide for the organization of 
cities and incorporated villages, passed May 3, 1852, passed April 3, 
1867. 64 O. L. 106. 

An act supplementary and amendatory to an act passed April 5, 
1856, entitled “ an act to amend an act entitled ‘ an act to provide 
for the organization of cities and incorporated villages/ passed May 
3, 1852,” and the several acts amendatory thereof, and supplementary 
to said acts, passed March 31, 1864. 61 0. L. 132. 

An act supplementary to the act entitled “ an act amendatory and 
supplementary to an act passed April 5, 1856, entitled ‘ an act to 
amend an act entitled an act to provide for the organization of cities 
and incorporated villages/ ” passed May 3,1852, and the several acts 
amendatory thereof and supplementary to said acts, passed March 31, 

1864, passed March 20, 1866. 63 0. L. 42. 

An act supplementary to an act entitled an act to provide for the 
organization of cities and incorporated villages, passed April 8, 1856, 
passed April 5, 1866. 63 0. L. 133. 

An act to limit the lien of assessments made by municipal corpo¬ 
rations to defray the expenses of improvements, passed March 29, 
1867. 64 0. L. 75. 

An act supplementary to an act entitled “ an act supplementary to 
‘ an act to provide for the organization of cities and incorporated vil¬ 
lages/ ” passed April 5, 1866, passed May 15, 1868. 65 0. L. 199. 

An act supplementary to an act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3, 1852, 
passed April 16, 1867. 64 O. L. 215. 

An act supplementary to an act to provide for the organization of 
cities and incorporated villages, passed May 3,1852, passed March 16, 

1865. 62 0. L. 45. 

An act to amend an act passed March 16, 1865, entitled “ an act 
supplementary to an act to provide for the organization of cities and 
incorporated villages,” passed May 3,1852, passed February 15,1867. 
64 O. L. 16. 

An act supplementary to the act to provide for the organization of 
cities and incorporated villages, passed May 3, 1852, and to repeal a 
certain act therein named, passed April 16, 1867. 64 0. L. 241. 

An act supplementary to the act to provide for the creation and reg- 


[ 193 ] 

illation of incorporated companies in the state of Ohio, passed May 1, 

1852, passed April 6, 1866. 63 0. L. 187. 

An act to protect the interest of turnpikes and plank roads, passed 
May 1, 1861. 58 0. L. 113. 

An act to authorize the town councils of certain incorporated villages 
to improve certain highways, passed April 16, 1867. 64 0. L. 249. 

An act supplementary to the act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3, 1852, 
passed May 13, 1868. 65 0. L. 187. 

An act supplementary to “ an act to provide for the organization of 
cities and incorporated villages,” passed May 3, 1852, and to regulate 
and establish the grade of wharves and landing places in cities con¬ 
taining a population exceeding eighty thousand inhabitants, passed 
January 30, 1863. 60 0. L. 3. 

An act to authorize cities to appropriate land for levees, passed 
April 10, 1867. 64 O. L. 123. 

An act to authorize certain cities to issue bonds for the purpose of 
protecting themselves from floods, passed February 27, 1867. 64 0. 
L. 26. 

An act supplementary to an act entitled an act to amend an act 
entitled an act to provide for the organization of cities and incorpo¬ 
rated villages, passed March 11, 1853, and the act amendatory there¬ 
of, passed April 29, 1854, passed February 19, 1866. 63 0. L. 18. 

An act supplementary to an act entitled “ an act to amend an act 
entitled an act to provide for the organization of cities and incorpo¬ 
rated villages,” and the act amendatory thereto, passed March 11, 

1853, passed April 29, 1854, passed March 28, 1864. 61 0. L. 71. 

An act to amend an act supplementary to an act entitled “ an act 

to amend an act entitled an act to provide for the organization of cities 
and incorporated villages,” passed March 28, 1864, passed March 29, 
1866. 63 0. L. 61. 

An act supplemental to an act entitled an act amendatory and sup¬ 
plemental to an act passed April 5,1856, entitled an act to amend an 
act entitled an act to provide for the organization of cities and incor¬ 
porated villages,” passed May 3, 1852, and the several acts amenda¬ 
tory thereof and supplemental to said acts, passed April 12, 1858, 
passed April 4, 1861. 58 0. L. 57. 

An act to amend the first, second, third and fourth sections of an act 
entitled “ an act supplementary to an act relating to cities of the first 
class having a population exceeding eighty thousand inhabitants,” 
passed March 5, 1860, passed March 14, 1864. 61 0. L. 25. 

An act supplementary to an act relating to cities of the first class 
having a population exceeding eighty thousand inhabitants, passed 
March 5,1860, passed April 12, 1861. 58 0. L. 86. 

An act to authorize the construction of sewers in cities of the second 
class having over thirteen thousand inhabitants at the last federal cen¬ 
sus, passed February 9,1863. 60 0. L. 6. 

An act to amend an “ act to authorize the construction of sewers in 
cities of the second class having over thirteen thousand inhabitants at 
13 


[ 194 ] 

the last federal census,’’ passed February 9, 1863, passed March 23, 
1864. 61 0. L. 48. 

An act to extend the provisions of an act passed March 23, 1864, 
providing for the construction of sewers to all cities of the second 
class and incorporated villages containing not less than two thousand 
inhabitants, passed April 12, 1861, [March 9, 1866.] 63 0. L. 36. 

An act to extend an act therein named to cities of the first class 
which have been advanced to the grade of cities of the first class since 
1860, and to further regulate the construction of sewers in said cities, 
passed April 21, 1868. 65 0. L. 104. 

An act to amend section one of the act entitled “ an act supplemen¬ 
tary to an act to provide for the organization of cities and incorporated 
villages,” passed May 3, 1852, and the amendment passed March 11, 
1853, and a supplementary act passed April 8, 1856, and supple¬ 
mentary to the act passed psAssed April 12, 1858, passed March 11, 
1863, passed March 25, 1864. 61 0. L. 64. 

An act supplementary to an act to provide for the organization of 
cities and incorporated villages, passed May 3, 1852, and the amend¬ 
ment passed March 11, 1853, and a supplementary act passed April 8, 
1856, and supplementary to the act passed April 12, 1858, passed 
March 11, 1863. 60 0. L. 14. 

An act supplementary “ to an act to provide for the organization 
of cities and incorporated villages,” passed May 3, 1852, and the 
amendment passed March 11, 1853, and a supplementary act passed 
April 8, 1856, and supplementary to the act passed April 12, 1858, 
and supplementary to the act passed March 11, 1863, and the act 
passed March 25, 1864, passed April 11, 1865. 62 0. L. 117. 

An act to authorize cities of the first class having a population of 
over one hundred thousand inhabitants to levy a tax for sewerage pur¬ 
poses, passed April 2, 1866. 63 0. L. 86. 

An act supplementary to “ an act to provide for the organization of 
cities and incorporated villages,” passed May 3, 1852, (S. & C., sec. 
26, page 1491) and the amendment passed March 11, 1854, [1853] 
(S. & C. 1527) and a supplementary act passed April 8, [5] 
1856, (S. & C. 1542) and supplementary to the act passed April 
12, 1858, (55 v. Stat. 70) and supplementary to the act passed March 

11, 1863, (60 v. Stat. 14) and supplementary to the act passed March 

25, 1864, (61 v. Stat. 64) and the act passed April 11, 1865, (62 v. 

Stat. 117 ; Swan’s R. S. 855, 979) passed April 5, 1866. 63 O L 

144. 

An act to authorize certain cities of the first class to issue bonds to 
complete Eggleston avenue sewer, and to levy a tax to pay the same, 
passed April 13, 1868. 65 0. L. 86. 

An act to amend section one of “ an act to authorize certain cities 
of the first class to issue bonds to complete ‘ Eggleston avenue sewer,’ 
and to levy a tax to pay the same,” passed April 13, 1868, passed 
May 14, 1868. 65 0. L. 195. 

An act to authorize the cities of the first class having a population 


[ 195 ] 

of over one hundred thousand inhabitants, to levy a tax for sewerage 
purposes, passed February 21, 1867. 64 0. L. 19. 

An act supplementary to the act entitled “ an act to amend an act 
to authorize the construction of sewers in cities of the second class 
having over thirteen thousand inhabitants at the last federal census,” 
passed February 9, 1863, passed March 23, 1864, passed April 16. 
1867. 64 0. L. 236. 

An act supplementary to “ an act to provide for the organization of 
cities and incorporated villages,” passed May 3, 1852, (S. & C. 1491, 
sec. 26) and the amendment passed March 11, 1854, [1853] (S. & C. 
1527) and a supplementary act passed April 8, [5] 1856, (S. & C. 
1542) and supplementary to the act passed April 12, 1858, (55 v. 
Stat. 70) and supplementary to the act passed March 11, 1863, (60 v, 
Stat. 14) and supplementary to the act passed March 25,1864, (61 v. 
Stat, 64) and the act passed April 11, 1865, (62 v. Stat. 117 ;) and 
supplementary to the act passed April 5, 1866, (63 v. Stat. 144; 
Swan’s E, S. 855, 979.) Passed January 26, 1867. 64 0. L. 8. 

An act supplementary to an act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3, 1852, 
passed April 11, 1867. 64 O. L. 124. 

An act to authorize the council of incorporated villages to levy a 
tax for sewerage purposes, passed April 13, 1867. 64 O. L. 141. 

An act to authorize the councils of incorporated villages of over 
two thousand inhabitants to locate and construct local sewers, passed 
April 3, 1867. 64 0. L. 104. 

An act to authorize city councils of cities of the second class to 
borrow money and issue bonds for the enlargement and improvement 
of water-works, passed March 11, 1867. 64 0. L. 50. 

An act supplementary to “ an act to authorize city councils of cities 
of the second class to borrow money and issue bonds for the enlarge¬ 
ment and improvement of water-works, passed March 11, 1867,” 
passed February 15, 1868. 65 O. L. 9. 

An act to authorize city councils of cities of the first class, having 
a population of over one hundred thousand inhabitants, to issue bonds 
for water-works purposes, passed April 3, 1868. 65 O. L. 77. 

An act to authorize cities to extend the water-works beyond the 
city limits, passed April 6, 1865. 62 0. L. 86. 

An act supplementary to “an act to provide for the organization of 
cities and incorporated villages,” passed May 3,1852, passed March 
25, 1863. 60 0. L. 44. 

An act supplementary to the act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3,1862, 
passed March 7, [9] 1866. 63 0. L. 30. 

An act to authorize the establishment of houses of correction, and 
the confinement of convicted persons therein, passed April 23, [13] 
1867. 64 0. L. 130. 

An act supplementary to an act entitled “ an act supplementary to 
the act entitled ‘ an act to provide for the organization of cities and 


[ 196 ] 

incorporated villages,’ passed May 3, 1852,” passed March 9, 1866, 
passed April 11, 1868. 65 0. L. 85. 

An act to provide for the appointment of cemetery directors, passed 
March 8, 1865. 62 0. L. 38. 

An act to authorize town councils of incorporated villages to ap¬ 
propriate lands for cemetery purposes, passed April 8, 1865. 62 O. 

L. 101. 

An act to amend sections one and two of an act supplementary to 
the act entitled “ an act to provide for the organization of cities and 
incorporated villages, as amended March 7, 1860,” passed March 29, 

1867. 64 0. L. 70. 

An act for the protection of certain graveyards and burial-grounds, 
passed April 3, 1867. 64 0. L. 102. 

An act to enable certain villages to levy a special tax for cemetery 
purposes, passed April 16, 1867. 64 0. L. 203. 

An act to authorize cities of the second class, and the townships in 
which the same may be situated, to unite in the purchase and im¬ 
provement of land for cemetery purposes, passed March 20, 1868. 65 
O. L. 32. 

An act supplementary to an act entitled “ an act to provide for the 
organization of cities and incorporated villages, passed March 11,1853, 
and the acts amendatory thereof and supplementary thereto, passed 
April 3, 1868. 65 0. L. 52. 

An act authorizing trustees of cemetery associations to sell and 
transfer by deed of trust such lands as they hold in trust, to town¬ 
ship trustees and the council of incorporated villages, passed May 16, 

1868. 65 0. L. 212. 

An act to amend section four (4) of an act entitled “ an act to enable 
townships and incorporated villages to establish cemeteries common to 
both,” passed and took effect March 17, 1860, passed May 16, 1868. 
65 0. L. 213. 

An act to authorize certain cities therein named to borrow money 
for fire purposes, passed April 8, 1868. 65 0. L. 67. 

An act to amend section one of an act passed April 9, 1863, en¬ 
titled an act supplementary to the “ act to provide for the organ¬ 
ization of cities and incorporated villages, passed May 3, 1852,” 
passed March 25, 1864. 61 0. L. 61. 

An act supplementary to the “ act to provide for the organization 
of cities and incorporated villages, passed May 3, 1852,” passed 
April 9, 1863. 60 0. L. 68. 

An act supplementary to the act entitled “ an act prescribing the 
rates of taxation for state, county, township, city and other purposes,” 
passed April 30, 1862, passed April 16, 1867. 64 0. L. 230. 

An act to amend a certain act therein named in relation to the pur¬ 
chase of steam or other fire engines, by incorporated villages, passed 
February 25, 1867. 64 0. L. 23. 

An act to authorize incorporated villages in this state to borrow 
money and levy taxes for the purpose of purchasing fire engines and 
to build engine houses, passed April 11, 1865. 62 0. L. 113. 


[ 197 ] 

An act to provide for the erection of a hospital in cities of the first 
class having a population of over one hundred thousand inhabitants, 
passed April 6, 1866. 63 0. L. 153. 

An act to amend section seven of an act entitled an act to provide 
for the erection of a hospital in cities of the first class having a pop¬ 
ulation of over one hundred thousand inhabitants, passed April 13, 

1867. 64 0. L. 139. 

# An act supplementary to the “ act to provide for the organization of 
cities and incorporated villages,'' passed May 3, 1852, passed April 
9, 1868. 65 0. L. 83. 

An act supplementary to an act entitled “ an act to provide for the 
erection of a hospital in cities of the first class having a population of 
over one hundred thousand inhabitants,” passed April 6, 1866, 
passed May 5, 1868. 65 0. L. 148. 

An act to authorize city councils of cities of the second class hav¬ 
ing a population of sixteen thousand and upward at the last federal 
census, to borrow money and issue bonds for the purpose of purchas¬ 
ing ground and erecting a building thereon, for a city hall, and other 
purposes, passed March 30, 1868. 65 0. L. 39. 

An act to amend an act entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages,” passed May 3, 1852, 
passed April 12, 1865. 62 0. L. 135. 

An act in relation to city parks, and to repeal an act therein 
named, passed May 8, 1868. 65 0. L. 163. 

An act to authorize cities of the second class therein named to im¬ 
pose a tax for bridge purposes, passed April 5, 1866. 63 O. L. 120. 

An act to extend the provisions of an act passed April 5, 1866, 
entitled “ an act to authorize cities of the second class therein named 
to impose a tax for bridge purposes” (63 v. Stat. 120) to cities of 
the first class raised to that grade between decennial periods, passed 
April 13, 1867. 64 0. L. 149. 

An act supplementary to the act entitled “ an act to provide for the 
organization of cities and incorporated villages,” passed May 3,1852, 
passed March 9, 1866. 63 0. L. 36. 

An act authorizing cities of the second class to create new wards, 
and define the boundaries thereof, in certain cases, passed March 21, 
1863. 60 0. L. 25. 

An act supplementary to an act entitled “ an act authorizing cities 
of the second class to create new wards and define the boundaries 
thereof in certain cases,” passed March 21, 1863, passed March 19, 

1868. 65 0. L. 28. 

An act supplementary to the act entitled “ an act to provide for 
the organization of cities and incorporated villages,” passed May 3, 
1852, passed February 15, 1867. 64 0. L. 14. 

An act to re-enact and amend “ an act supplementary to the act to 
provide for the organization of cities and incorporated villages,” 
passed May 3,1852, passed April 14, 1868. 65 0. L. 88. 

An act to provide for the organization, as cities of the first class, of 
such cities as may have been advanced to the grade of cities of the first 


L198 ] 

class between decennial periods and prior to May, 1867; and also 
supplementary to the act passed May 8, 1852, entitled “ an act to pro¬ 
vide for the organization of cities and incorporated villages/’ and to 
the several acts supplementary thereto and amendatory thereof, now 
in force ; also further to define the duties of county treasurers, passed 
March 14, 1867. 64 0. L. 52. 

An act to amend section seven of an act entitled “ an act to provide 
for the organization, as cities of the first class, of such cities as may 
have been advanced to the grades of cities of the first class between 
decennial periods, and prior to May, 1867 ; and also supplementary to 
the act passed May 3,1852, entitled “ an act to provide for the organ¬ 
ization of cities and incorporated villages,” and to the several acts 
supplementary thereto and amendatory thereof, now in force; also, 
further to define the duties of county treasurers, passed April 16, 
1868. 65 0. L. 92. 

An act supplementary to the “ act to provide for the organiza¬ 
tion of cities and incorporated villages,” passed May 3, 1852, passed 
February 3, 1864, May 5,1868. 65 0. L. 145. 

An act supplementary to the “ act to provide for the organization 
of cities and incorporated villages,” passed May 3, 1852, passed May 
5, 1868, February 3, 1864. 61 0. L. 5. 

An act supplementary to “ an act to provide for the organization 
of cities and incorporated villages,” passed May 3, 1852, passed 
March 28, 1864. 61 0. L. 72. 

An act to amend the first section of the “ act to authorize cities of 
the second class to fund their floating debt,” passed February 24, 
1868, [1865.] 62 0. L. 31. 

An act to authorize cities of the first class, having a population of 
less than one hundred thousand, to fund their floating indebtedness, 
passed March 31, 1864. 61 0. L. 134. 

An act to authorize cities of the first class, having a population of 
less than one hundred thousand, to fund their floating indebtedness, 
passed April 13, 1867. 64 0. L. 148. 

An act to enable certain cities to borrow money and levy a tax to 
pay the same, passed April 11, 1867. 64 0. L. 123. 

An act to authorize certain cities of the second class to levy taxes to 
aid in the erection of court-houses, passed April 12, 1867. 64 0 

L. 129. 

An act supplementary to the act to provide for the organization of 
cities and incorporated villages, passed May 3, 1852, passed February 
28, 1861. 58 0. L. 23. 

An act to authorize cities of the first class, exceeding one hundred 
thousand inhabitants, to purchase fuel and levy a tax therefor, passed 
February 20,1864. 61 0. L. 13. 

An act to amend an act entitled “ an act to authorize cities of the 
first class, exceeding one hundred thousand inhabitants, to purchase 
fuel and levy a tax therefor,” passed February 20,1864, passed March 
9, 1867. 64 0. L. 41. 


[199] 

An act to restrain city councils of cities of the first class in certain 
cases, passed April 7, 1865. 62 0. L. 96. 

An act to amend an act entitled “ an act to authorize certain cities 
of the first class to issue bonds for the purchase of gas-works, passed 
April 6, 1866, passed January 26, 1867. 64 0. L. 7. 

An act to amend an act entitled “ an act to authorize certain cities 
of the first class to sprinkle the streets,” passed April 18,1865, passed 
April 6, 1866. 63 0. L. 186. 

An act supplementary to an act entitled an act to provide for the or¬ 
ganization of cities and incorporated villages, passed May 3, 1852, 
passed April 16, 1867. 64 0. L. 24S. 

An act to limit the powers of city councils of cities of the first class 
having a population of one hundred thousand inhabitants and up¬ 
ward, passed February 1,1865. 62 0. L. 7. 

An act to amend section five of “an act prescribing the rates of 
taxation for state, county, township, city and other purposes, passed 
April 30, 1862, as amended February 7, 1866, passed May 14, 1868. 
65 0. L. 195. 

An act to amend the second and third sections of the act passed 
April 30, 1862, entitled “ an act prescribing the rates of taxation for 
state, county, township, city and other purposes, passed April 14,1863. 
60 0. L. 93. 

Sections one and two of an act entitled “ an act to amend an act to 
provide for and regulate street railroad companies,” passed April 10, 
1861, and supplementary thereto, passed March 27,1866. 63 0. L. 55. 

An act to amend an act for the better regulation of street railroads, 
and for other purposes, passed April 17, 1867, passed April 9, 1868. 

65 0. L. 83. 

An act for the better regulation of street railroads, and for other 
purposes, passed April 17, 1867. 64 0. L. 250. 

An act supplementary to an act to authorize the erection, improv¬ 
ing, enlarging or constructing additions to town-halls, and to repeal 
an act therein named, passed April 2, 1866, passed April 13, 1867. 
64 0. L. 143. 

An act supplementary to an act passed April 13, 1867, entitled an 
act supplementary to an act authorizing the erection, improving, en¬ 
larging or constructing additions to town-halls, and to repeal an act 
therein named, passed April 2, 1866, passed May 6, 1868. 65 0. L. 

162. 

An act to amend section sixty-nine of an act entitled an act to pro¬ 
vide for the organization of cities and incorporated villages, passed 
May 3,1852, as amended March 25,1862, as amended April 29,1862, 
and to repeal section one of the last named act, passed March 15,1869. 

66 0. L. 25. 

An act to authorize cities of the second class to receive donations 
of library buildings and libraries, and keep up and maintain the same, 
passed February 24, 1868. 65 0. L. 12. 


[ 200 ] 


Sec. 731. [732.] When this act to take effect. This act shall take 
effect and be in force from and after the first day of July, 1869. 

F. W. THORNHILL, 
Speaker of the House of Representatives. 

J. C. LEE, 

President of the Senate. 


Passed May 7, 1869. 


[ 201 ] 


TOWN PLATS-RECORDING, ETC. 


An Act to provide for the recording of town plats. 


[Passed March 3, and took effect June 1,1831.—3 Chase, ch. 867.] 

Sec. 1. How towns laid off. Be it enacted, etc., That when¬ 
ever any person wishes to lay out a town within this state, they shall 
cause the same to be surveyed, and a plat or map thereof made by the 
county surveyor, if any there be, of the county in which said town is 
situated; but if there be no county surveyor in the county, then , 
and in that case, by the county surveyor of an adjacent county : l 
which plat or map shall particularly describe and set forth all the 
streets, alleys, commons or public grounds, and all in and out-lots, or 
fractional lots, within, adjoining, or adjacent to said town, describing 
the same by courses, boundaries and extent. 

Sec. 2. Same. That all the in-lots intended for sale, shall be 
numbered in progressive numbers, or by the squares in which they 
are situated, and their precise length and width shall be stated on said 
plat or map : and all out-lots which shall not exceed ten acres in size, 
shall in like manner be surveyed and numbered, and their precise 
length and width stated on the plat or map, together with any streets, 
alleys or roads which shall divide or border on the same. 

Sec. B. Same. That the proprietor of the town, his, her or their 
agent, shall, at the time of surveying and laying out a town, plant 
and fix at a corner of the public ground, or at the corner of a public 
lot, if any there be, and if there be none, then at the corner of some 
one of the in-lots in the town, and at the corner of each out-lot, a good 
and sufficient stone, of such size and dimensions, and in such man¬ 
ner as the surveyor shall direct, for a corner from which to make future 
surveys; and the point or points where the same may be found, shall 
be designated on the plat or map. 

Sec. 4. Acknowledgment of plat—its record. That the plat or 
map, after having been completed, shall be certified by the surveyor, 
and acknowledged by the owner or owners of the town, if resident of 
this state; or if said owner or owners shall not reside in this state, 
then and in that case, by his, her or their agent, legally authorized so 
to do, before some officer authorized to acknowledge deeds, and re¬ 
corded in the recorder’s office of the county in which said town is sit¬ 
uated. 

Sec. 5. Same. That if the county in which said town is situated 
shall not be organized, then, and in that case, the plat or map shall be 
recorded in the recorder’s office of that county to which the county, 


i Any other competent surveyor is sufficient. 2 Curwen, ch. 930. 



[ 202 ] 

in which said town is situated, shall at the time he attached for judi¬ 
cial purposes. 

Sec. 6. Plats of subdivision in cities or towns—how made , ac¬ 
knowledged and recorded. That all proprietors of lots or grounds 
in any city or town corporate in this state, who have subdivided or 
laid out, or who shall hereafter subdivide or lay out the same in lots 
for sale, shall cause accurate and true maps or plats thereof to be re¬ 
corded in the office of the recorder of the county in which such town 
or city may be situated ; which maps or plats, so to be recorded, 
shall set forth and describe, with certainty, all grounds laid out or 
granted for streets, alleys, ways, commons, or other public uses ; and 
all the lots sold or intended for sale by progressive numbers, or by the 
squares in which they are situated, and the precise length and width 
of each and every lot; and shall be acknowledged before a justice of 
the peace, or some other officer authorized by law to take and certify 
acknowledgments of deeds, and shall be certified by the officer taking 
the same, in the manner prescribed for the proof and acknowledgment 
of deeds; and such map or plat so recorded, shall be deemed a suffi¬ 
cient conveyance to vest the fee of the parcel or parcels of land therein 
set forth and described, or intended to be for streets, alleys, ways, 
commons or other public uses, in such city or town corporate, to be 
held in the corporate name thereof, in trust to, and for the uses and 
purposes so set forth and expressed or intended. 

Sec. 7 Penalty for selling lots in subdivision or addition, before 
plat is recorded. That if any proprietor or proprietors, or his or their 
agent or attorney, shall sell any lot or lots, in any plan of subdivi¬ 
sion of, or addition to the lots originally laid out in any town or city in 
this state, before a map or plat of such subdivision or addition shall 
have been recorded, as herein required, such proprietors, agent or at¬ 
torney shall forfeit and pay to the state of Ohio, for the use of such 
town or city, the sum of fifty dollars for each and every lot so sold, 
to be recovered in an action of debt, before any court having cogni¬ 
zance of the same, together with costs of suit, on the complaint of any 
citizen. 

Sec. 8. How estate in public grounds, etc., vest by recording 
plat. That the plat or map, when recorded, as required by this act, 
shall be deemed and considered in law, a sufficient conveyance to vest 
the fee-simple of all such parcel or parcels of land as are therein ex¬ 
pressed, named or intended for public use, in the county in which the 
town is situated, for the uses and purposes therein named, expressed 
or intended, and for no other use or purpose whatever. 1 

Sec. 9. Penalty for not platting, surveying, or planting corners. 


iMunicipal corporations are competent “to acquire, hold and possess 
property, real and personal;” ante, p.12, § 8. “To acquire by purchase, 
or otherwise, and hold real estate, or any interest therein, and other prop¬ 
erty, for the uses of the corporation, and to sell or lease the sameante, 
p. 58, § 199, cl. 34. But “no street or alley, which has been or may be 
dedicated to public use by the proprietor of ground in any corporation, 
shall be deemed a public street or alley, or be under the care or control 



[ 203 ] 

That if any person shall lay out any town, or addition to any town or 
city, and neglect to plant the corner-stones therein, or cause the same 
to be surveyed and platted, in any other manner than that which is 
prescribed in this act, every person, so offending, shall forfeit and pay 
the sum of one hundred dollars, for the use of the county, to he re¬ 
covered in an action of debt, in the name of the county treasurer. 

Sec. 10. Or selling lots without first recording plat. That if 
any person shall dispose of, offer for sale, or lease for any time exceed¬ 
ing five years, any out or in-lot in any town, or addition to any town 


of the council, unless tlie dedication shall be accepted and confirmed by 
an ordinance specifically passed for such purpose;” ante, p. 108, § 440. 

The opening of a street, by the ordinance of a municipal corporation, 
is a dedication of the property condemned, to a specific use; i. e., a street 
or highway; and the owners of such property have an immediate right 
of action therefor against the city. Strader v. Cincinnati , 1 Handy, 446. 

1. A dedication of land to public uses may be effected by grant, by es¬ 
toppel, or by following the statutory form of dedication. Fulton v. Meh- 
renjield , Disney’s R. 151. 

2. Dedications at common law, in pais , operate by way of estoppel, and 
not as grants. Ib. 

3. The act of 1805, providing for the recording of town plats, contem¬ 
plated the entire plat of a town, and did not apply to smaller subdi¬ 
visions. Ib. 

4. The recording of a plat, under the act of 1831, in relation to subdi¬ 
visions, would convey to the public no interest in the streets of a subdi¬ 
vision, in case the proprietor had failed or neglected to have the plat ac¬ 
knowledged; but such act of subdivision and record would, with other 
acts of the proprietor, go to prove a dedication at common law. Ib. 

5. There can be no dedication to the public without an acceptance by 
the public, and this may be shown by the occupation and use and other 
acts on the part of the public. Ib. 

Storer, J.: “ The legal title in the property sought to be recovered, never 
vested in the plaintiff by virtue of the recorded plat. It is claimed, how¬ 
ever, that the subsequent acts of Davies, and those who claim under him, 
may be referred to in aid of the dedication, and thus remove all doubts 
as to the donor’s intention. We admit the propriety of such testimony, 
and could give it full effect, were the plaintiff now in possession, claim¬ 
ing the property in trust for the public use, and the original proprietor 
or his grantees suing for the land. In such a case there need be no tech¬ 
nical title, as the question would be merely upon the right to occupy 
under the license. The public enjoyment of the easement need not be 
supported by deed, if once begun, and acquiesced in by the owners of the 
fee; for there can be no distinction between a legal and an equitable 
claim to the possession of the public, provided the use is consistent with 
the purposes of the dedication.” * * * * * *.,.*.* 

“ The plaintiff does not pretend that she ever assented to the dedication, 
or been in the enjoyment of the easement. If they had proved an occu¬ 
pation, with the consent of Davies, and their right had been disturbed, 
they would have their remedy; but the proposition, in the imperfectly 
executed plat, to dedicate, never having been accepted by those who rep¬ 
resented the public, could not confer a right until the agreement was ex¬ 
ecuted by some unequivocal act on the part of the donees. 

“ We suppose there is no obligation upon a municipal corporation to 
accept the grant of a street, on the offer of any proprietor to set apart a 
portion of his estate for that purpose. She may withhold her assent, and 
no title will pass. Such a power should always be reserved to the public 
authorities, else the highways of a city or town, instead of being regu- 




[ 204 ] 

or city, or any part thereof, which shall hereafter be laid out, until all 
the foregoing requisitions of this act shall have been complied with, 
every person so offending, shall forfeit and pay, for the use of the 
county, the sum of twenty-five dollars, for each and every lot or part 
of lot so sold, disposed of, leased or offered for sale, for the use of the 


larly laid out and symmetrically numbered, may be as irregular in their 
form, width and adaptation to the public benefit, as the caprice or humor 
of the individual may dictate.” Ib. 

See also Boren v. Horton , Disney’s R. 401. 

The effect of the dedication is to transfer the fee to the public, and the 
dedication may be proved by parol; and while the donor can not reclaim 
the land, he may enforce the purposes for which the dedication was made. 
Gest v. Kenner , 2 Handy, 86. 

The acknowledgment and recording of a town plat, is the act of dedi¬ 
cation of the public ground to public uses. Brown v. Manning et al ., 6 O. 
298. An act of dedication, by the record of a town plat, of lots desig¬ 
nated thereon, thus: “ Public ground,” is presumed, in the absence of ex¬ 
planatory evidence, to be for a public square for the use of the town. A 
subsequent conveyance by the donors, affect neither the trust, nor the 
title. Lebanon v. Warren Co., 9 O. 80. 

When lands are dedicated by the owner to any lawful use, public, pious, 
or charitable, and are used for the object and in the manner contemplated 
by the owner, it inures, it is said, as a grant. That the existence of a 
grantee is not essential to the validity of such dedication; nor is any 
particular form of words necessary to give it effect. If accepted, and 
used by the public in the manner intended, it works an estoppel in pais , 
precluding the donor, and all claiming in his right, from asserting any 
ownership inconsistent with such use. Brown v. Manning , 6 O. 298. 

When the words of dedication are ambiguous, the cotemporaneous acts 
and declarations of the donors, and usage, may be adverted to, to explain 
them. Lebanon^. Warren Co., 9 O. 80. 

A town plat was made out and acknowledged by a person who pro¬ 
fessed to act as the agent of the owners of the land. The proprietors, in 
their deeds, adopted the numbers designated for the lots, and referred to 
the recorded town plat, and the town was occupied, in conformity to the 
plat, for twenty-five years. A piece of ground on the plat was marked 
“ P. Square,” and some of the deeds of the proprietors described lots as 
tying next to the public square. It was held, that the acts of the pro¬ 
prietors were sufficient proof of the authority of the agent. That the 
dedication of the public square was specific, and could not^e affected by 
parol proof of an intention on the part of the proprietors, in relation there¬ 
to, different from the recorded dedication. That an individual owner of a 
lot, adjacent to the public square, might proceed in chancery to enjoin 
the original proprietors from making private appropriations of such pub¬ 
lic square, he having an individual interest therein. Brown v. Manning , 
6 O. 298; Le Clercq v. Gallipolis , 7 0.1 pt. 217. 

If, however, a square is conveyed to a county for the use of public 
buildings and a court-house, the owners of lots adjoining thereto have no 
individual interest therein, and are not, therefore, the proper persons to 
prevent the commissioners of the county from leasing to individuals por¬ 
tions of the ground, reserving rent to the county. The lot-owners in such 
case act as volunteers in their interference with the commissioners, even 
though the latter are proceeding without authority. Smith v. Heuston , 
6 0.101. See Brown v. Manning , 6 O. 298, where this case is commented 
upon. 

Where land in a town has been dedicated as a public square, and used 
as such, the legislature can not authorize the town corporation to change 
its character. Le Clercq v. Gallipolis , 7 0.1 pt. 217. 




[ 205 ] 

county, to be recovered in an action of debt, in the name of the treas¬ 
urer of the county. 

Sec. 11. Directors of towns governed by preceding provisions. 
That the directors appointed by the court of common pleas, to lay 
out a town where a seat of justice has been located on lands on which 


A special verdict found that a dedication of grounds for public uses 
was made by the proprietors of a town, before a county was established, 
and that the county, when organized, came into the possession of the ded¬ 
icated grounds, and occupied them for a court-house and jail, with the 
consent of the people of the town, and further, “ that in so occupying 
said property, it was strictly in accordance with the object had in view 
by the original donors.” It was held, that the verdict found the right in 
the county. Cincinnati v. Hamilton Co ., 7 O. 1 pt. 68. 

Where land was dedicated simply as “ public ground,” it was held, that 
the actual occupation of it by a court-house andjail was not inconsistent 
with the use of the property in the town; its occupation transferred no 
property, but was an easement only; and that the town might reclaim 
its rights, when the county occupation ceased. Lebanon v. Warren Co ., 9 
O. 80; 18 O. 18-25. 

It seems that, in some cases, a contract impliedly prohibited by the im¬ 
position of a statutory penalty, may, notwithstanding, be enforced in a 
court of justice. A contract, therefore, for the sale of a lot is valid, and 
will be enforced, although the town has not been surveyed, platted, or 
recorded. Strong v. Darling , 9 O. 201. 

The trustees of the Ohio University, under authority of an act of the 
legislature, laid off the town of Athens on the lands donated by congress 
for the purpose of endowing a university, and recorded the plat. This 
plat contains certain streets, squares, etc., pertinently designated, and also 
certain vacant or unsurveyed land, without the limits of the town proper, 
bearing this designation : “ All the lands within the aforesaid boundary 
lines, not included in the public squares, house lots, out lots, streets and 
roads, are designated for commons; provided, always, that the board of 
trustees reserve the right of laying out such parts thereof as they may 
from time to time think proper, into house lots, out lots,” etc. Held , that 
the reservation was legal, and that the trustees had power to lay out into 
lots the portion of the land designated as commons, and dispose of the 
same for the benefit of the university. Crippen v. Ohio University, 12 O. 96. 

A tract of land designated in the plat ol a town laid out in 1796, as the 
“ public square,” was thereby dedicated to the use of the town, and no sub¬ 
sequent disposition made of it by the original proprietor can affect such 
use. Huber v. Gazley , 18 0.18; 3 O. S. 399. 

A person in possession of such land, deriving title under the original 
proprietor, has no lien upon the land for the consideration money, or im¬ 
provements. Ib. . . 

Where the width of a street marked by right lines, is given in a town 
plat, surplus land between the street and the low-water mark of a river, 
is not thereby dedicated to the use of the town. McLaughlin v. Stevens, 18 
O. 94. 

It is no evidence of an intention to dedicate land to the use of the pub¬ 
lic, that the original proprietor joins in a petition for a town charter, ex¬ 
tending the limits of the corporation over such land. Ib. 

A dedication, by the original proprietors of a town, of a parcel of ground 
therein, for public Uses, is valid, although they held but an equitable estate 
in the premises; and their trustee, holding but a naked legal title for 
their use, is bound to respect such dedication. Williams v. Presbyterian 

Society, 1 O. S. 478. .... . . . , . 

Such dedication, made before any legislative act required town plats to 
be recorded, is valid without such record. Ib. 



[ 206 ] 


no town is situated, shall be governed in all respects, and he liable to 
all the penalties of this act. 

Sec. 12. Act repealed. That the “ act providing for the recording 
of town plats,” passed February 14, 1805, be and the same is hereby 

And it is valid, although there was no grantee in esse when it was made, 
capable of taking the fee. Ib. 

Property dedicated to public uses, without any provision for a forfeiture, 
does not revert to the dedicators upon a misuser of it. It is only when 
the uses become impossible of execution, that it can revert. The right of 
a county or town to property thus dedicated, may be barred by the statute 
of limitations, or lost by lapse of time. Ib. 

So may a right of the dedicators to enforce a specific execution of the 
purposes of the dedication. Ib. 

Such dedicators have not, by mere operation of law, exclusive of any 
provision in the act of dedication, a visitorial pow r er. Ib. 

Under the territorial law of December 6,1800 (1 Chase, 291), a stranger 
w as not authorized to make a town plat and cause it to be recorded, unless 
the original proprietors were dead, or had removed from the territory. Ib . 

Although the manner of the dedication, and the principles and rules of 
property applicable to public highways and public squares or commons, 
in cities and villages, may rest upon the same ground, yet the use and 
purpose of each is different and clearly distinguished from the other. 
Langley .v . Gallipolis , 2 O. S. 107. 

The easement of a public highway comprehends the rights of all indi¬ 
viduals in the community, whether upon foot, on horse back, or with any 
kind of vehicle, to pass and to repass, together with the right of the pub¬ 
lic to do all the acts necessary to improve it and keep it in repair. But. 
the use or beneficial purpose of a public common or square, in a city or 
village, where no special limitation or use is prescribed by the dedication, 
is such that it may be improved and ornamented for recreation and health, 
or for the public buildings, or as a place for the transaction of public busi¬ 
ness of the people of the city or village; or both for the purposes of pleas¬ 
ure and business, at the discretion of the municipal authorities. Ib. 

The dedication of “ La Place” in the village of Gallipolis, subject to the 
single restriction that it should not be obstructed on the bank of the Ohio 
river by any kind of public buildings, was for the usual and ordinary pur¬ 
poses of a public square, and, as such, subject to the control of the public 
authorities of the people of the village, lb. 

The long-continued use of this ground as an uninclosed public common, 
could lay no foundation for any presumption against the right of the vil¬ 
lage to improve the ground, and use it in any other manner deemed more 
advantageous and beneficial to the public, within the terms of the dedi¬ 
cation. Ib. 

The provision in the act incorporating the town, which, among other 
things, confers the power “to regulate, improve, and keep open, unob¬ 
structed and in repair, the landings, commons, streets, etc., within the cor¬ 
poration,” has reference to the appropriate use and object to which each 
was dedicated, requiring each to remain open and unobstructed, so far as 
necessary to accomplish the appropriate object for which it was designed, 
and no further. Ib. 

No statute has authorized the recording of town plats not executed and 
acknowledged pursuant to statute, and, consequently, such record is not, 
per se , evidence. Nor is it made evidence by proof, that, in building or 
improving, some lot-owners paid respect to the plat, and others not. Satch - 
ell V. Doran , 4 O. S. 542. 

A dedication of ground for public uses may be made in Ohio, either 
under the statute or according to the rules of the common law. Fulton v. 
Mthrenfeld , 8 O. S. 440, affirming S. C., 2 Handy 176. 

When a valid dedication of a street has been made in either form an 



[ 207 ] 

repealed : provided, that all penalties incurred under said act, may be 
sued for and recovered, and shall he appropriated as provided in said 
act, in the same manner as if said act had not been repealed, fl 
Chase, ch. 91.) v 

This act to take effect from and after the first day of June next. 


TOWN PLATS-VACATING, ETC. 

An act to provide for the vacating of town plats, and for other 

purposes. 

[Passed and took effect January 29, 1828—3 Chase, ch. 744.] 

Sec. 1. Alteration , etc., on whose application. Be it enacted , 
etc., That the courts of common pleas are hereby authorized and em¬ 
powered, on application for that purpose, made by the proprietor or 
proprietors, his, her or their heirs, assignee or assignees of any 

action may be maintained by the proper municipal corporation to recover 
the possession from any one who wrongfully withholds it. lb. 

The statutory dedication, under the laws in force in 1830, operated to 
transfer the estate by way of grant, requiring no assent on the part of the 
public, and to be effective as a dedication, the solemnities required by the 
statute, as to acknowledgment and recording, must be complied with, lb . 

A defective dedication under the statute is evidence, as an act inpais, of a 
dedication at common law by the owner. Ib. 

Dedications of land to public uses at common law in general, operate by 
way of estoppel , and not as grants or transfers of an interest, lb. 

To constitute a valid dedication of a street or highway at common law, 
there must be not only a dedication to public uses by the owner, but also 
an acceptance of such dedication by the public, and these may be shown 
by the acts and declarations of the parties and the surrounding circum¬ 
stances. 

The incorporated village of Van Wert was laid out in 1835, and the 
proprietors, by plat duly acknowledged and recorded, dedicated two spec¬ 
ified lots therein, “for school purposes, and on which to erect school- 
houses.” By reason of the subsequent construction and continued oper¬ 
ation of a railroad, and the location of a depot in connection therewith, 
in close proximity to these lots, they were rendered unsuitable to be used 
as sites for school-houses, and their use for that purpose became danger¬ 
ous. A petition was filed by the Board of Education of the incorporated 
village, praying, for the reason aforesaid, that the Court of Common 
Pleas might order the lots to be sold, and the proceeds of the sale to be 
applied to the purpose of suitable school-house sites, or to the erection of 
school-houses on suitable grounds to be procured by the board. Upon 
demurrer to the petition, Held , that the dedication was for the specific 
use, and conferred no power of alienation so as to extinguish the use; 
that if the use created by the dedication was abandoned, or should be¬ 
come impossible of execution, the premises would revert to the dedica¬ 
tors or their representatives, and that, without their consent, they could 
not be divested of their contingent right of reversion by an absolute alien¬ 
ation. The principle upon which a trust may, under certain circum¬ 
stances, be executed cy pres, is not applicable to such a use. Demurrer 
sustained and petition dismissed. Board of Ed. of Van Wert v. Van 
Wert , 18 O. S. —. 





[208 ] 

town, or of any addition of said town, situated within their proper 
county, to alter or vacate said town or its addition, or any part of 
either of them. 

Sec. 2. Notice thereof. That if the proprietor or proprietors of 
said town, or of the addition thereof, his, her or their heirs, assignee 
or assignees, shall be desirous of altering or vacating the same, or any 
part thereof, such proprietor or proprietors, his, her or their heirs, as¬ 
signee or assignees, shall give notice in writing of such intended appli¬ 
cation, in at least two places in the county wherein such town may be 
situated, one to be set up in the most public place in said town, and 
one on the court-house door of said county ; and shall also insert a 
copy of said notice in some newspaper printed in said county; and if 
no newspaper is printed in said county, then in some one having the 
most general circulation therein, at least sixty days prior to the sit¬ 
ting of said court, to which he, she or they, intend to make such ap¬ 
plication ; and which notices shall set forth and describe the part or 
parts intended to be vacated or altered, and the right by which the 
party, making such application, claims. 1 

Sec. 3. E'violence on the hearing—order and its record. That if 
such applicant shall produce to said court, satisfactory evidence that 
the notice, required by the preceding section, has been given, and that 
all persons owning any lot, or part thereof, in said town, or the addi¬ 
tion to said town, as the case may be, their authorized agent or attor¬ 
ney, have agreed that the whole or a part of said town, or its addition, 
shall be altered or vacated, the court shall, in their discretion, proceed 
to alter or vacate said town, or its addition, or any part of either; and 
the proceedings, under this act, shall be recorded by the clerk, with 
the records of said court, a copy whereof shall be made out and certi¬ 
fied under the seal of said court, by the clerk thereof, and be, by the 
party applying for such vacation or alteration of said town, or its ad¬ 
dition, within thirty days from the rising of said court, deposited 
with the recorder of deeds for said county, who shall record the same : 
provided, that the vacating of any town plat, or its addition, or any 
part thereof, shall not vacate any part of a state or county road. 

Sec. 4. Defendants to the ‘proceeding , and costs. That at the 
tenn to which the notice shall be given, as is provided for in the sec¬ 
ond section of this act, or at any subsequent term, during the pendency 
of said application, any person feeling interested in said proceedings, 
may, upon motion for that purpose, be made party defendant to said 
application ; and in which case, upon final hearing, the party succeed¬ 
ing shall have judgment against the other, for the costs of said pro¬ 
ceedings, and, for which, execution may issue as in other cases. 

Sec. 5. Fees of clerk. That the clerk of the court shall be enti¬ 
tled to the sum of fifty cents for the recording of any plat required to 
be recorded under the provisions of this act; and for such other serv¬ 
ices, the same fees as are allowed for similar services by the act enti¬ 
tled “ an act to regulate the fees of civil officers in civil and criminal 
cases,” passed February 19, 1824. 


U Curwen, ch. 249, 



[209] 

Sec. 6. Public common may be changed into streets , etc . That 
on application made, and notice given according to the provisions of 
this act, the court of common pleas shall have power to change any 
commons that may be included in any town plat within their proper 
county, into streets, and to cause such change to be recorded, as is 
provided by the third section of this act. 

Sec. 7. Act repealed. That the act entitled “an act for the va¬ 
cating of town plats, and for other purposes/’ passed December twen¬ 
ty-first, eighteen hundred and eleven, be and the same is hereby re¬ 
pealed. (2 Chase, ch. 261). 


TOWNS—ESTABLISHING AND VACATING STREETS. 

An act to amend the act to provide for the vacation of town plats, 
and for other purposes, passed January 29, 1828. 

[Passed and took effect March 5, 1839.—1 Curwen, ch. 249.] 

Sec. 1. Who may apply for establishment or vacation of street 
or alley. Be it enacted , etc., That on petition filed in the court of 
common pleas of any county in this state, by any person or persons 
owning any lot or lots in any town or city, in the said county, praying 
that any alley or alleys, street or streets, in the immediate vicinity of 
such lot or lots, may be established or vacated, the said court may, and 
they are hereby authorized, upon hearing, and being satisfied that it 
will conduce to the general interests of such town or city, to declare 
such alley or alleys, street or streets, established or vacated. 

Sec. 2. Proceedings in such case. That in all cases where appli¬ 
cation shall he made in the manner and for the purpose aforesaid, such 
petition shall be filed in the office of the clerk of said court, at least 
forty days previous to the next term of the said court, and the peti¬ 
tioners shall also give notice in some newspaper printed in said county, 
in general circulation therein, of the filing of such petition, and the 
substance and prayer thereof ; and if the court shall be of opinion that 
any person or persons owning any lot or lots in the immediate vicinity 
of such alley or alleys, street or streets, prayed to be vacated or estab¬ 
lished, not assenting to, or petitioning therefor, will sustain damage 
thereby, they may proceed to hear proof in reference thereto, and may 
render judgment against the petitioners for such damages as they may 
think just, and the same shall be assessed by the court against the pe¬ 
titioners, ratably, according to the value of the property owned by the 
petitioners, as the same stands taxed on the tax duplicate of said county ; 
and, when necessary, the court shall appoint a guardian or guardians 
ad litem, for all minors or persons of non-sane mind, who may be in¬ 
terested in the premises. 

Sec. 3. Same. That such alley or alleys, street or streets, as 
shall be declared vacated, under the provisions of this act, shall not 
be closed or obstructed until the damages assessed or adjudged under 
14 



[ 210 ] 


the second section shall have been fully paid to the persons entitled 
to the same. 


TOWN PLAT-VACATING, ETC . 1 

An act to amend the act to provide for the vacating of town plats, 
and for other purposes. 

[Passed and took effect February 19, 1840.—1 Curwen, ch. 300.] 

Sec. 1 . Power of court to alter or vacate. Be it enacted , etc., 
That the courts of common pleas shall have power to alter or vacate 
any town plat, addition, or parts thereof, within their proper county, 
as hereinafter provided. 

Sec. 2. Mode of proceeding for that purpose. That on appli¬ 
cation of two-thirds of the proprietors of said town plat, or addition, 
or part of said town plat or addition, proposed to be vacated or altered, 
in writing, as hereinafter required, the court may alter or vacate said 
town plat, addition, or parts thereof; and if the court shall he of opin¬ 
ion that any person or persons owning any lot or lots in said town 
plat, addition, or parts thereof, proposed to he vacated or altered, not 
assenting thereto, will sustain damage thereby, they may proceed to 
hear proof in reference thereto, and may render judgment against the 
petitioners for such damages as they may think proper and just, and 
the same shall he assessed by the court, against the petitioners rata¬ 
bly, according to the value of the property owned by the petitioners, 
as the same stands taxed on the duplicate of said county; and when 
necessary, the court shall appoint a guardian or guardians ad litem, 
for all minors or persons of insane mind, who may be interested in 
the premises. 

Sec. 3. Same. That on the payment of the damages, thus assessed 
in the second section of this act, such town plat, addition, or parts 
thereof shall be considered vacated, or altered, as the case may be. 

Sec. 4. Same. That all applications, for vacating or altering any 
town plat, addition, or parts thereof, mentioned, shall be in writing, 
in which the petitioners shall set forth, specifically, the plat, addition, 
or parts to be vacated or altered ; which application shall be filed with 
the clerk of the court of common pleas within said county, forty days 
before the sitting of said court to which said application is intended to 
be made ; and shall give thirty days’ notice thereof, in writing ; one of 
which notices shall be put up in some public place, in the township where 
such town plat, addition, or parts thereof may be situated, [and] one 
on the court-house door of the county ; and thirty days’ notice in some 
newspaper printed in said county, and of general circulation in said 
county, and if no newspaper is printed in said county, then in some 
one having the most general circulation in said county ; which notices 
shall set forth briefly, the part or parts of said town plat, addition, 
or parts thereof, to be vacated. 


See ante, p. 122, $$ 491-493. 




[ 211 ] 

Sec. 5. Repealing clause. That so much of the act passed Jan¬ 
uary 29, 1828, entitled “ an act to provide for the vacating of town 
plats, and for other purposes,” as is inconsistent with the provisions 
of this act, be and the same is hereby repealed. 


TOWN LOTS—NUMBERING, ETC, 

An act authorizing the numbering of lots in any city, town or bor¬ 
ough in this state to be revised. 

[Passed February 2, took effect April 1, 1848.—2 Curwcn, ch. 812.J 

Sec. 1. Who shall revise and renumber lots. Be it enacted, etc., 
That where the lots of any city, town or borough in this state are not 
numbered consecutively upon the original plat thereof, and the plats of 
addition or subdivision thereto, it shall be lawful for the auditor and 
recorder of the county in which such city, town or borough may be 
situate, in Conjunction with some person to be appointed by the cor¬ 
porate authority of such city, town or borough, to make a revision of 
the numbers of all the in-lots and out-lots of such city, town or bor¬ 
ough, as the same stand upon record ; and to number anew all the said 
lots, so that the in-lots of such city, town or borough shall have but 
one single consecutive series of numbers, beginning with number one; 
and the out-lots shall have but one similar series of numbers, also be¬ 
ginning with number one. 

Sec. 2. Mode of renumbering , etc. That the said auditor and 
recorder, with their associate, to be appointed as aforesaid, shall make 
a schedule of all the in-lots of any such city, town or borough, begin¬ 
ning with the original plat thereof, setting down the lots in the same, in 
the order of their numbers, and placing opposite thereto the new num¬ 
bers, which shall be appropriated to the respective lots, following in the 
same manner with the plats of addition and subdivision, according to 
their pribrity in dates of record, so that the first column shall contain 
the old numbers of said in-lots in their consecutive order, and the 
second column shall exhibit opposite to the said numbers, respect¬ 
ively, the new numbers appropriated to each of said lots. And, in 
the same manner, they shall make a schedule of the out-lots of any 
such city, town or borough. Such schedule shall accurately and dis¬ 
tinctly indicate the plat in which such in-lot or out-lot originally 
stands upon record; and it shall be the duty of the auditor and re¬ 
corder to place said schedules on record in their respective offices. 

Sec. 3. Shall be assessed and legally known by their new num¬ 
bers. That whenever the revision and renumbering of the lots in any 
such city, town or borough shall have been made, and the schedule 
thereof recorded, as provided for in the preceding section, the said lots 
shall be assessed and entered upon the duplicate for taxation, accord¬ 
ing to their new numbers ; and in all the operations of the assessment 
and collection of taxes, they shall be lawfully known and designated 



[ 212 ] 

by the new numbers given to them under the authority of this act; 
and all conveyances of the same may be made by the said new num¬ 
bers, and shall be sufficient to pass the same, in the same manner that 
such lots might be conveyed when described by their old numbers. 

Sec. 4. How expenses of renumbering paid. When such revision 
and renumbering shall be done at the request of the corporate authority 
of any such city, town or borough, the expenses thereof shall be paid 
by such city, town or borough. The county commissioners, however, 
of any county in which any unincorporated town or borough may be 
situate, shall have authority to direct the auditor and recorder to 
make such revision and renumbering of such unincorporated town or 
borough, and cause the expenses thereof to be paid out of the county 
treasury. They may also direct the auditor and recorder to make such 
revision and renumbering of an incorporated town or borough, at the 
expense of the county, where the same shall be neglected by the cor¬ 
porate authority of any such town or borough, should the commis¬ 
sioners be of opinion that such revision and renumbering are necessary 
for convenience and efficiency in taxation. 

Sec. 5. How additions or subdivisions are to be numbered after 
such revision. That after the revision aforesaid shall have been made 
and recorded, as hereinbefore provided, every person who shall lay off 
lots as an addition to any such city, town or borough, or who shall 
make a subdivision to [of] any lots therein, shall number the lots so 
divided upon his plat in regular consecutive numbers, commencing 
with the next number after the highest number of in-lots or out-lots, 
as the case may be, and shall be on record as forming a part of any 
such city, town or borough, the number of the lots in which have been 
so revised as aforesaid, unless he shall find, upon careful examination 
thereof, that the numbers of the lots thereon are in regular continua¬ 
tion from the last number of lots already on record. 

Sec. 6. Compensation. The auditor, recorder, and their associate, 
shall each receive the sum of two dollars per day for their services 
under this act. 

Sec. 7. When act took effect. That this [act] shall take effect and 
be in force on and after the first day of April next. 


TOWN-HALLS . 1 

Sec. 1. Be it enacted , etc., That the legal voters of any town¬ 
ship, incorporated village, or city of the second class in this state, 
having a population not exceeding sixteen thousand inhabitants, may 
assemble on the first Monday of April in any year, at the usual place 
of holding elections in said township, incorporated village or city of 
the second class, as aforesaid, and then and there decide, by ballot, for 
or against levying a tax on all the property subject to taxation in such 
township or incorporated village, or city of the second class, as afore- 


1 See ante, p. 96. 




[213] 

said, for the purpose of erecting a town-hall, or for the purpose of 
improving, enlarging, or constructing additions to a town-hall already 
erected ; provided, ten days’ previous notice shall be given by the town¬ 
ship clerk, on the order of the township trustees, (or the written request 
of not less than ten legal voters of the township,) by posting up 
printed or written notices in three of the most public places in said 
township; and in incorporated villages and cities of the second class, 
said notices shall be given by the town or city council by publication 
in some newspaper of general circulation therein. 1 

Sec. 2. That every voter who is in favor of levying a tax on all the 
property of the township, as aforesaid, for the erection of such hall, or 
for improving, enlarging or constructing additions to town-halls already 
erected, as the case may be, shall indorse on his ballot “town-hall,” 
“improvement town-hall,” “enlargement town-hall,” or “addition 
town-hall,” as the case may be ; and if a majority of all the ballots cast 
at said election are indorsed as aforesaid, then the trustees of such town¬ 
ship shall, on or before the first day of June thereafter, inform the auditor 
of the proper county of the vote of the electors in such township, as 
expressed at said election; and the county auditor shall levy a tax on 
all the property of such township standing on the grand list, for the 
purpose aforesaid ; and the said trustees of any township shall have 
power to purchase grounds, or to receive by devise or deed of gift for 
the conveyance of real estate, for said purpose ; and it shall be lawful 
for the trustees of any township in which a town-hall shall have been 
erected at any time, to levy a tax upon all the property of said town¬ 
ship subject to taxation, for the purpose of painting, repairing, or 
discharging any existing debt incurred in the erection or purchase of 
such hall, or in the improving, enlarging, or constructing additions to 
such hall, provided the amount of taxes under the provisions of this 
act shall in no case exceed four mills on the dollar in any one year, on 
the taxable property of any township; provided, further, that the 
trustees of any township, or their successors in office, shall not levy a 
tax for the erection of any % town-hall, nor for the painting, repairing 
or enlarging of any town-hall already erected, for a period not longer 
than seven years ; and the tax so levied shall be collected by the 
county treasurer, in the same manner and at the same time that state 
and county taxes are collected, and by him paid, on the order of the 
county auditor, to the trustees of such township raising the same. 
Act of 1869, § 2; 66 0. L. 339. 

Sec. 3. That said hall and the grounds upon which it is erected or 
purchased for the erection of a town-hall, shall be under the control 
of the trustees of the township, and the trustees of such township 
shall have power to sell and convey any lot or grounds which may 
have been purchased by such trustees for said town-hall, at any time 
previous to the erection of such town hall on said lot or grounds, 
whenever a majority of the qualified electors at any general election 
of such township shall vote in favor of selling the same and pur- 


i Act of 1866, §1; 63 0. L. 84. 



[214] 

chasing grounds elsewhere: provided, that ten days' previous notice 
shall he given by the township clerk on the order of the township 
trustees or the written request of not less than ten legal voters of the 
township, by posting up printed or written notices in three of the most 
public places in said township; and all money arising from such sale 
shall be applied to the purchase of such other site as may be selected 
by the trustees of said township ; provided further, that all townships, 
as aforesaid, that have heretofore voted for a town-hall under the pro¬ 
visions of the act heretofore repealed, and which have not yet levied 
the tax to build the same, are hereby authorized to levy said tax un¬ 
der the provisions-of this act. Act of 1869, § 3 ; 66 0. L. 340. 

Sec. 4. That the act entitled “ an act to amend the act entitled an 
act to authorize the erection of town-halls, passed February 24, 1848, 
and to repeal an act amendatory thereof, passed April 3, 1861/’ passed 
March 25, 1864, be and the same is hereby repealed. Act of 1866, 
§4;. 63 0. L. 85. 

Sec. 5. This act shall take effect from and after its passage. Act 
of 1866, § 5 ; 63 O. L. 86. 

Sec. 6. That the legal voters of any incorporated village or city of 
the second class, having a population not exceeding sixteen thousand 
inhabitants, and the legal voters of the township in which said incor¬ 
porated village is situated, be and are hereby authorized to erect on 
the public square of said incorporated village, or in the absence of such 
public square, upon such property as the town council of said incorpo¬ 
rated village and township trustees may purchase, a town and town¬ 
ship hall, upon such terms and conditions as the town council of said 
village and the trustees of said township may agree upon under the act 
to which this is supplementary. Act of 1867, § 1 ; 64 0. L. 140. 

Sec. 7. This act shall take effect from and after its passage. Act 
of 1867, §2; 64 0. L. 141. 


POOR. 

An act to provide temporary relief for the poor in cities of the second 
class, and in incorporated villages of not less than three thousand 
inhabitants. 

[Passed May 4, 1869; 66 0. L. 86.] 

Sec. 1. Additional levy for poor purposes. Be it enacted, etc. r 
That the city council of cities of the second class and the town coun¬ 
cils of incorporated villages having a population of not less than three 
thousand, are hereby authorized to submit the question to the qualified 
electors to levy a tax in addition to the other taxes now authorized by 
law, of not more than three-fourths of a mill on the dollar; the pro¬ 
ceeds of which shall be exclusively applied to the relief of the poor 
within, such city or incorporated village, to be distributed under the 
direction of a committee composed of one from each ward, or a com¬ 
mittee of three in each incorporated village, appointed annually by the 
council, who will serve without compensation. 

Sec. 2. This act shall take effect on its passage. 




[215] 


RAILROADS. 

An act relating to cities of the first class having a population exceeding 
one hundred and fifty thousand inhabitants. 

[Passed May 4, 1869 ; 66 0. L. 80.] 

Sec. 1. Proceedings to establish and maintain a railroad. Be 
it enacted, etc., That whenever, in any city of the first class having a 
population exceeding one hundred and fifty thousand inhabitants, the 
city council thereof shall, by a resolution passed by a majority of the 
members elected thereto, declare it to be essential to the interests of 
such city that a line of railway, to be named in said resolution, should 
be provided between termini designated therein, one of which shall 
he such city, it shall he lawful for a board of trustees, appointed as 
herein provided, and they are hereby authorized to borrow as a fund 
for that purpose, not to exceed the sum of ten millions of dollars, and 
to issue bonds therefor in the name of said city, under the corporate 
seal thereof, bearing interest at a rate not to exceed seven and three- 
tenths per centum per annum, payable at such times and places, and 
in such sums, as shall be deemed best by said board. Said bonds 
shall be signed by the president of said board, and attested by the city 
auditor, who shall keep a register of the same, and shall be secured by 
a mortgage on the line of railway and its net income, and by the 
pledge of the faith of the city, and a tax, which it shall be the duty of 
the council thereof annually to levy, sufficient, with said nCt income, 
to pay the interest and provide a sinking fund for the final redemption 
of said bonds; provided, that no money shall be borrowed on bonds 
issued until after the question of providing the line of railway specified 
in the resolution shall be submitted to a vote of the qualified electors 
of said city, at a specified election to be ordered by the city council 
thereof, of which not less than twenty days’ notice shall be given in 
the daily papers of the city; and further provided, that a majority of 
said electors, voting at such election, shall decide in favor of said line 
of railway. The returns of said election shall be made to the city 
clerk, and be by him laid before the city council, who shall declare the 
result by a resolution. The bonds issued under the authority of this 
section shall not be sold or disposed of for less than their par value. 

Sec. 2. Duty of city solicitor—of the judges. If a majority of 
the votes cast at said election shall be in favor of providing the line of 
railway as specified in the first section, it shall be the duty of the so¬ 
licitor forthwith to file a petition in the superior court of said city, or, 
if there be no superior court, then in the court of common pleas of the 
county in which said city is situate, praying that the judges thereof 
will appoint five trustees, to he called the trustees of-rail¬ 

way (the blank to be filled with the name given to the railway in the 
resolution); and it shall be the duty of said judges to make the ap¬ 
pointment, and to enter the same on the minutes of the court. They 
shall enter into bond to the city in such sum as the court may direct, with 
one or more sufficient sureties, to be appointed [approved] by the court, 



[2161 

conditioned for the faithful discharge of their duties. The bond so taken 
shall be deposited with the treasurer of the corporation for safe keeping. 

Sec. 3. Duty of the trustees. The said trustees and their suc¬ 
cessors shall be the trustees of the said fund, and shall have the con¬ 
trol and disbursement of the same. They shall expend said fund in 
procuring the right to construct, and in constructing a single or double 
track railway, with all the usual appendages, including a line of tele¬ 
graph between the termini specified in the said resolution ; and for the 
purposes aforesaid shall have power and capacity to make contracts, 
appoint, employ and pay officers and agents, and to acquire, hold and 
possess all the necessary real and personal property and franchises, 
either in this state or in any other state into which said line of rail¬ 
way may extend. They shall also have power to receive donations 
of land, money, bonds and other personal property, and to dispose of 
the same in aid of said fund. 

Sec. 4. President of the hoard, duties , etc. The said trustees 
shall form a board, and shall choose one of their number president, 
who shall also be the acting trustee, with such power as the board 
may by resolution from time to time confer upon him. A majority 
of said trustees shall constitute a quorum, and shall hold regular 
meetings for the transaction of business, at their office in the city 
under whose action they are appointed, hut they may adjourn from 
time to time to meet at any time and place they may think proper. 
They shall keep a record of their proceedings, and they shall cause 
to he kept a full and accurate account of their receipts and disburse¬ 
ments, and make a report of the same to the city auditor annually, and 
whenever requested by a resolution of the city council. No money 
shall he drawn from said fund but upon the order of said board, except 
their own compensation, which shall be paid out of the same upon the 
allowance of the court appointing them, and shall be proportioned ac¬ 
cording to their respective services. 

Sec. 5. Security of officers. Said trustees shall have power to 
take such security from any officer, agent or contractor, chosen, ap¬ 
pointed or employed by them, as they shall deem advisable. They 
shall not become surety for any such officer, agent or contractor, or be 
interested directly or indirectly in any contract concerning said rail¬ 
way. They shall be responsible only for their own acts. 

Sec. 6 . Removal for cause. Whenever the city solicitor of any 
city under whose action a board of trustees has been appointed as 
herein provided, shall have reason to believe that any one of said trus¬ 
tees has failed in the faithful performance of his trust, it shall be his 
duty to apply to the court that appointed said trustee, by petition, 
praying that such trustee be removed, and another appointed in his 
place; and when a vacancy shall occur in said hoard from any other cause, 
it shall be filled in like manner. If the said city solicitor shall fail 
to make application in either of the foregoing cases, after request of 
any holder of the bonds issued by said trustees or by a tax-payer of 
the corporation, such bondholder or tax-payer may file a petition in 
his own name on behalf of the holders of such bonds for like relief, 


[217J 

in any court having jurisdiction, and if the court hearing the action 
shall adjudge in favor of the plaintiff, he shall be allowed as part of 
his costs, a reasonable compensation to his attorney. 

Sec. 7. Appropriation of land for abutments, etc. Whenever 
in the construction of a line of railway as herein provided, it shall he 
necessary to appropriate land for the foundation of the abutments 
or piers of any bridge across any stream within or bordering upon 
this state, or for any other purpose, or to appropriate any rights or 
franchises, proceedings shall be commenced and conducted in accord¬ 
ance with the act entitled “ an act to provide for compensation to the 
owners of private property appropriated to the use of corporations,” 
passed April 3,1852, and the acts supplementary thereto, except that 
the oath and verdict of the jury and the judgment of the court shall 
be so varied as to suit the case. 

Sec. 8. Purchase of right of way, etc. Whenever there shall 
he between the termini designated in any resolution passed under this 
act, a railroad already partially constructed, or rights of way acquired 
therefor, which can be adopted as part of the line provided for in said 
resolution, the trustees of said line may purchase the said railroad 
and right of way, and pay for the same out of the trust fund. 

Sec. 9. Portions may be rented or leased. The said trustees 
shall have power, as fast as portions of the line for which they are 
trustees are completed, to rent or lease the right to use and operate 
such portions upon such terms as they may deem best; hut such 
rights shall cease and determine on the final completion of the whole 
line, when the right to use and operate the same shall he leased by 
them to such person or company as will conform to the terms and 
conditions which shall he fixed and provided by the council of the 
city by which the line of railroad is owned. 

Sec, 10. How expenses of election paid. The city council of 
any city passing a resolution as provided in the first section, may ap¬ 
propriate and pay to the said trustees, out of the general fund of said 
city, such sum as may be necessary for defraying the expenses of the 
election, and said sum shall be repaid out of said trust fund when 
raised. 

Sec. 11. This act shall take effect on its passage. 


AN ACT 

To authorize cities of the first class to build railroads and to lease or 
operate the same. 

[Passed May 4, 1869 ; 66 0. L. 83.] 

Sec. 1 . Proceedings to establish and maintain a railroad. Be 
it enacted, etc.. That in cities of the first class, which have been ad¬ 
vanced to that grade between decennial periods, the city council thereof 
shall, by a resolution passed by a majority of the members elected 
thereto, declare it to he essential to the interests of such city that a line 




[ 218 ] 

of railroad, to be named in said resolution, should be provided between 
termini designated therein, one of which shall be such city, it shall be 
lawful for a board of trustees, appointed as herein provided, and they 
are hereby authorized, to borrow, as a fund for that purpose, not to 
exceed the sum of five per cent, of the value of the property on the 
tax duplicate of such city, and to issue bonds therefor, in the name of 
said city, under the corporate seal thereof, bearing interest at a rate 
not to exceed seven and three-tenths per centum per annum, payable 
semi-annually at such places and in such sums as shall be deemed best 
by said board. Said bonds shall be signed by the president of said 
board and the mayor of such city, and attested by the city auditor or 
clerk, who shall keep a register of the same, and shall be secured by 
a mortgage on the line of railway, and its net income, and by the 
pledge of the faith of the city, and a tax not exceeding five mills on 
the dollar, which it shall be the duty of the council thereof annually to 
levy, sufficient, with said net income, to pay the interest and provide 
a sinking fund for the final redemption of said bonds; provided, that 
no money shall be borrowed or bonds issued until after the question 
of providing the line of railway specified in the resolution shall be 
submitted to a vote of the qualified electors of said city, at a special 
election to be ordered by the council thereof, of which not less than 
twenty days’ notice shall be given in the daily papers of said city; 
and provided further, that two-thirds of said electors voting at said 
election shall decide in favor of said line of railway. The returns of 
said election shall be made to the city clerk, and be by him laid before 
the city council, who shall declare the result by resolution. The bonds 
issued under the authority of this section, shall not be sold or disposed 
of for less than their par value. 

Sec. 2. Duty of solicitor, court, etc. If two-thirds of the votes cast 
at said election shall be in favor of providing the line of railway as spec¬ 
ified in the first section, it shall be the duty of the city solicitor forth¬ 
with to file a petition in the court of common pleas of the county in 
which said city is situate, praying that the judges thereof will appoint 

five trustees, to be called the trustees of-railway (the blank to 

be filled with the name given to the railway in the resolution) ; and it 
shall be the duty of said judges to make the appointment and to enter 
the same on the minutes of the court. They shall enter into bond to 
the city in such sum as the court may direct, with one or more suffi¬ 
cient sureties, to be approved by the court, conditioned for the faithful 
discharge of their duties. The bond so taken shall be deposited with 
the treasurer of the corporation for safe keeping. 

Sec. 3. Duties of trustees, etc. The said trustees and their suc¬ 
cessors shall be the trustees of the said fund, and shall have the con¬ 
trol and disbursement of the same; they shall expend said fund in 
procuring the right to construct, and in constructing a single or double 
track railway, with all the usual appendages, including a line of tele¬ 
graph between the termini specified in said resolution; and for the 
purposes aforesaid shall have power and capacity to make contracts, 
appoint, employ and pay officers and agents, and to acquire, hold and 



[219] 

possess all the necessary real and personal property and franchises in 
this state; they shall also have power to receive donations in land or 
money, bonds and other personal property, and dispose of the same in 
aid of said fund. 

Sec. 4. President of the hoard — duties, etc. The said trustees 
shall form a board, and shall choose one of their number president, 
who shall also he the acting trustee, with such power as the hoard 
may, by resolution, from time to time confer upon him. A majority 
of said trustees shall constitute a quorum, and shall hold regular meet¬ 
ings for the transaction of business at their office in the city under 
whose action they are appointed; hut they may adjourn from time to 
time to meet at any time they may think proper; they shall keep a 
record of their proceedings, and they shall cause to be kept a full and 
accurate account of their receipts and disbursements, and make a re¬ 
port of the same to the city council annually, and whenever requested 
by a resolution of the city council. No money shall be drawn from 
said fund but upon the order of said hoard, except their own compen¬ 
sation, which shall be paid out of the same upon the allowance of the 
court appointing them, and shall be apportioned according to their re¬ 
spective services. 

Sec. 5. Security of officers. Said trustees shall have power to 
take such security from any officer, agent or contractor, chosen, ap¬ 
pointed or employed by them, as they shall deem advisable. They 
shall not become surety for any such officer, agent or contractor, or he 
interested directly or indirectly in any contract concerning said rail¬ 
way. They shall be responsible only for their own acts. 

Sec. 6. Removal for delinquency, etc. Whenever the city council of 
any city shall have reason to believe that any one of said trustees has 
failed in the faithful performance of his trust, it shall be their duty to 
instruct the city solicitor to apply to the court that appointed said 
trustee by petition, praying that such trustee he removed, and another 
appointed in his place; and. when a vacancy shall occur in said board 
from any other cause, it shall be filled in like manner. If the said 
city solicitor shall fail to make application in either of the foregoing 
cases, after request by any holder of the bonds issued by said trustees, 
or by a tax-payer of the corporation, such bondholder or tax-payer 
may file a petition in his own name, on behalf of the holders of such 
bonds, for like relief, in any court having jurisdiction; and if the 
court having [hearing] the action shall adjudge in favor of the plaintiff, 
he shall be allowed, as part of his costs, a reasonable compensation for 
his attorneys. 

Sec. 7. Appropriation of land, etc. Whenever in the construc¬ 
tion of a line of railway, as herein provided, it shall be necessary to 
appropriate land for the foundation of the abutments or piers of any 
bridge across any stream within this state, or for any other purpose, or 
to appropriate any rights or franchises, proceedings shall be com¬ 
menced and conducted in accordance with the act entitled an act to 
provide for compensation to the owners of private property appropri¬ 
ated to the use of corporations, passed April 3,1852, and the acts sup- 


[ 220 ] 

plementary thereto, except that the oath and verdict of the jury and 
the judgment of the court, shall he so varied as to suit the case. 

Sec. 8. Purchase of right of way, etc. Whenever there shall he 
between the termini designated in any resolution passed under this 
act, a railroad already partially constructed, or rights of way acquired 
therefor, which can be adopted as part of the line provided for in said 
resolution, the trustees of said line may purchase the said railroad 
and rights of way, and pay for the same out of the trust fund. 

Sec. 9. Portions may be rented or leased. The said trustees 
shall have power, as fast as portions of the line for which they are 
trustees are completed, to rent or lease the right to use and operate 
such portions, upon such terms as they may deem best; but such rights 
shall cease and determine on the final completion of the whole line, 
when the right to use and operate the same shall be leased by them to 
such person or company as will conform to the terms and conditions 
which shall be fixed and provided by the council of the city by which 
the line of railway is owned. 

Sec. 10. Compensation of trustees. The city council of any city 
passing a resolution as provided in the first section of this act, may 
appropriate and pay to the said trustees, out of the general fund of 
said city, such sum as may be necessary for defraying the expenses of 
the election, and said sum shall be repaid out of said trust fund when 
raised. 

Sec. 11. This act shall take effect on its passage. 


METROPOLITAN POLICE. 1 

Sec. 1. Be it enacted, etc., That sections one, five, six, eight, nine, 
eleven, twenty-one, twenty-three, twenty-six, twenty-nine and thirty- 
five of said act be amended so as to read as follows : 

That all powers and duties connected with, and incident to the gov¬ 
ernment and discipline, in cities of the first class with a population 
less than one hundred thousand inhabitants at the last federal census, 
shall be as hereinafter more especially provided, vested in and exer¬ 
cised by a board of police in each city, composed of four commission¬ 
ers of police, together with the mayor of said cities, who shall be ex- 
officio a member of said board and the president thereof, a majority of 
whom shall constitute a quorum for the transaction of business. Act 
of 1866, as amended in 1868, 65 O. L. 45, § 1. 

The said board of police shall at any time have power to appoint a 
superintendent of the police force, a captain of police, and one captain 
in addition for each fifty patrolmen called into service more than the 
first fifty, and a sergeant of police to each twelve patrolmen, and also 
regular or compensated patrolmen, not exceeding one to each one thou¬ 
sand inhabitants, as shown by the last federal census ; provided, that 
the number of said patrolmen may be increased by and with the con- 


iSee ante, p. 61. 




[ 221 ] 

sent of the city council; and, provided also, that the said hoard shall 
have the power, in cases of emergency, to appoint as many special 
patrolmen as they may think proper, but such appointment shall be 
reported to and be subject to the action of the city council at its next 
meeting. The board may, from the patrolmen, appoint detectives, 
not exceeding three in number, one of whom shall be designated as 
chief of detectives, who shall act as secret police or detectives, and 
may, each, receive an additional compensation of one hundred dollars 
per year ; and when, from any cause, a vacancy shall exist in the num¬ 
ber so first appointed, the board may appoint to said vacancy the pa¬ 
trolman which the record required to be kept, as hereinafter provided, 
shall show to be most meritorious. Said board shall also have power 
to remove any superintendent, captain, or chief of detectives, and for 
cause to be assigned on a public hearing, and on due notice according 
to rules to be promulgated by them, to remove or suspend from office, 
or for a definite time deprive from pay, any other member of such police 
force, to make rules and regulations for the discipline and government 
of said force, and shall cause the same to be published ; and to make 
and promulgate general and special orders to said force, through the 
superintendent of police. Act of 1866, as amended in 1868, 65 0. L, 
45, §5. 

That said board shall appoint some suitable person to act as secre¬ 
tary, who shall receive such annual salary as may be determined upon 
by the board of police, and shall perform such duties as are hereinafter 
provided, and shall hold his office during the pleasure of said board. 
Act of 1866, as amended in 1868, 65 0. L. 46, § 6. 

It shall be the duty of the board of police, and of the force hereby 
constituted, at all times of the day and night, within the boundaries 
of said cities, to preserve the public peace, to prevent crime, and arrest 
offenders, to protect rights of persons and property, to guard the pub¬ 
lic health, to preserve order, to remove nuisances existing in public 
streets, roads, places and highways, to report all leaks or other defects 
in water-pipes and sewers to the proper authorities, to provide a proper 
force at every fire, in order that thereby the firemen and property may 
be protected, to protect strangers and travelers at steamboat and ship 
landings and railway stations, and generally to obey and enforce all 
ordinances of the city council, criminal laws of the state and of the 
United States. Whenever any crime shall be committed in said cities, 
whether the person or persons accused or suspected of being guilty shall 
flee from justice or not, the superintendent of police shall immediately 
report to the chief of detectives all facts which may have come to his 
knowledge concerning the offense, or the accused or suspected parties; 
and the board of police may, in their discretion, authorize any person 
or persons belonging to the police force to pursue and arrest such 
accused or suspected person or persons, and return them to the proper 
criminal court having jurisdiction of the offense for trial. Act of 1866, 
as amended in 1868, 65 0. L. 46, § 8. 

The qualification, enumeration and distribution of duties, mode of 
trial and removal from office of each member of said police force, except 


[ 222 ] 

as provided in section five, shall be particularly defined and prescribed 
by rules and regulations of the board of police ; and no person shall be 
appointed to or hold office in the police force aforesaid, who is not a 
citizen of the United States and a resident of the city ; and provided, 
that no sergeant or patrolman shall be removed therefrom except upon 
written charges preferred against him to the board of police, and after 
an opportunity shall have been afforded him of being heard in his 
defense ; but the board of police shall have power to suspend any mem¬ 
ber of the police department of the city, pending the hearing of the 
charges preferred against him ; and, provided, that whenever any va¬ 
cancy shall occur in the office of captain of police, the same may be 
filled by an appointment from among the persons then in the force as 
sergeants of police, and a like vacancy in the office of sergeant of police 
may be filled by appointment from among the persons then in office as 
police patrolmen. The police commissioners shall receive no compen¬ 
sation for their services. The superintendent of police shall receive a 
salary of not exceeding fifteen hundred dollars per annum. Each cap¬ 
tain shall receive a salary of not exceeding one thousand dollars per 
annum ; and each sergeant a salary not exceeding nine hundred dollars. 
The pay of each police patrolman shall not exceed the sum of eight 
hundred dollars per annum. The pay in all cases shall be fixed by said 
board of police commissioners. The salaries shall be paid monthly to 
each person entitled thereto. No member of the board of police, or of 
the police force, shall receive, or share in for his own benefit, under 
any pretense whatever, any present, fee, gift or emolument, for police 
service, other than the regular salary and pay provided by this section, 
except by the unanimous consent of the board of police ; nor shall any 
such member receive or share in any fee, gift or reward from any per¬ 
sons who may become bail for the appearance of any arrested, accused 
or convicted person, or who may become surety for any such person on 
appeal from the judgment or decision of any court or magistrate, or 
any fee, gift or reward, in any case, from an attorney-at-law who may 
prosecute or defend any person arrested or prosecuted for any offense 
within the county in which such cities may be situated ; nor shall 
any such member, either directly or indirectly, interest himself or inter¬ 
fere in any manner whatever, in the employment or retainer of any attor¬ 
ney to aid in the defense of persons arrested or accused; and for any 
violation of either of the foregoing provisions, the person so offending 
shall be immediately removed from the police force. Act of 1866, as 
amended in 1868, 65 0. L. 46, § 9. 

All rewards, fees, proceeds of gifts and emoluments that may be 
allowed by the boards of police, to be paid and given for, or on ac¬ 
count of extraordinary services of any member of the police force, 
and all money arising from the sale of unclaimed property or money, 
shall be paid into the city treasury, and shall constitute a fund to be 
called “the police life and health insurance fund,” and the persons 
who shall from time to time constitute the boards of police, are hereby 
declared the trustees of said fund, and may invest the same as they 
shall see fit, either in whole or in part, and shall have power to draw 


[223] 

the same from the treasury for that purpose. Act of 1866, as amended 
in 1868, 65 0. L. 47, § 11. 

It shall be the duty of the hoard of police to prepare and submit 
to the city auditor on or before the first day of May in every year, 
an estimate of the whole cost and expense of providing for and main¬ 
taining the police department of said city within the current fiscal 
year, which estimate shall he in detail, and shall be laid by the city 
auditor before the city council, and the same shall be, by the city 
council of said city, provided for in the general tax assessment, by 
levy to be laid on property in said city. Said money, when collected, 
shall be paid into the city treasury, and shall be styled the “police 
fund,” and shall be drawn out therefrom for police purposes of said 
city, under the fiscal regulations established by this act. Act of 
1866, as amended in 1868, 65 O. L. 47, § 21. 

No expenses, other than salaries and pay herein provided, shall be 
incurred by the board of police, except for rents, record-books, sta- 
tionrey, printing, telegraphing, badges, clubs and furniture of neces¬ 
sary rooms and stations, advertising, fuel and lights, and food for 
prisoners, unless the same shall be expressly authorized and provisions 
therefor made, as a city charge, by the city council of the city within 
which the expenditures become necessary. The books and accounts 
kept by said board shall at all times be subject to the inspection of the 
city council, and the city council may at any time require any inform¬ 
ation respecting the same, the disclosure of which will not impair the 
usefulness and efficiency of the police department. Act of 1866, as 
amended in 1868, 65 0. L. 47, § 23. 

The superintendent of police shall make to the secretary of the 
board daily reports of such facts as may come to his knowledge from 
the patrolmen, and the secretary shall make to the board monthly re¬ 
ports, in writing, of the state of the police force, with such statistics 
and suggestions as he may deem advisable for the enforcement of the 
police government and discipline. The board of police shall, on or 
before the first Monday in April, in each year, report in writing the 
condition of the police to the city council. Act of 1866, as amended 
in 1868, 65 0. L. 48, § 26. 

Either of said commissioners of police may at any time be removed 
by the city council, upon good cause being shown, three-fourths of 
all the members concurring, and in all cases where charges are made out 
against a commissioner, he shall have an opportunity to present evidence 
in his behalf. Act of 1866, as amended in 1868, 65 0. L. 48, § 29. 

All statutes, parts of statutes and provision of law, inconsistent 
with the provisions of this act, are hereby repealed, together with all 
modes and qualifications of appointment to office as members of- po¬ 
lice departments, or of elections to office therein, inconsistent with the 
provisions of this act; such appeal [repeal], however, to take effect 
and become operative only when the board of police provided for by 
this act shall be duly organized, and a police force shall be appointed 
by said board and sworn into office. The president of the board of 
police shall notify the superintendent of police, in writing, and pub- 


[224] 

lish a notice in two daily papers of the city, stating the time of the 
organization of said police force. Act of 1866, as amended in 1868, 
65 0. L. 48, § 35. 

Sec. 2. That immediately after the passage of this act, it shall be 
the duty of the city council of cities of the first class, having a popu¬ 
lation less than one hundred thousand inhabitants, to provide by ordi¬ 
nance, to be passed by a vote of three-fourths of all the members, for 
dividing said cities into four districts, by wards, having reference to 
as equal an apportionment of population and contiguity of territory 
as may be, to be called police districts, which said districts shall be 
numbered one, two, three, and four, which said districts shall not 
thereafter be changed except by ordinance passed by a vote of three- 
fourths of all the members of the council. Act of 1868, 65 0. L. 48, § 2. 

Sec. 3. That at the next annual city election in said cities of the 
first class, having a population of less than one hundred thousand in¬ 
habitants, after the passage of this act, there shall be elected in each 
of said districts, by the qualified electors thereof, one member of the 
board of police commissioners, and of the four thus elected one shall 
serve one year, one two years, one three years, and one four years ; and 
for the purpose of fixing their respective terms, they shall determine 
by lot, and at each annual city election thereafter, there shall be elected 
one member of said board, to be elected by the district in which the 
retiring member "was elected ; and the commissioners so elected, to¬ 
gether with the mayor as herein provided, shall constitute the board 
of police. That after the expiration of the term aforesaid, the term 
of office of the commissioners to be elected as herein provided shall be 
four years; and any vacancy which may happen in said board of com¬ 
missioners shall be filled by appointment by the remaining members 
thereof, to continue until the next annual city election ; and said com¬ 
missioners shall, before entering upon the duties of their office, be 
sworn to a faithful performance thereof. Act of 1868, 65 0. L. 48, § 3. 

Sec. 4. That from and after the passage of this act, the powers of 
the metropolitan police commissioners then in office, in cities of the 
first class having a population of less than one hundred thousand in¬ 
habitants, shall cease, and the entire control of the police force of such 
cities shall vest in and be exercised by the mayor thereof; and the 
mayor of any such city is hereby invested with such powers as are 
herein provided for the board of police commissioners, with full power 
to exercise the same, until said city shall be districted and commis¬ 
sioners elected and qualified as herein provided. Act of 1868, 65 O. 
L. 49, § 4. 

Sec. 5. That the mayor of any city of the first class having a pop¬ 
ulation of less than one hundred thousand inhabitants, shall have 
power to suspend any officer of the police force and appoint a person 
to perform the duties of such suspended officer until the next regular 
meeting of the board of police commissioners, when his action shall 
be submitted to said board, and the board shall determine whether 
such suspension shall be permanent, and if said board shall so deter- 


[225] 

mine, they shall proceed to make an appointment to fill the vacancy. 
Act of 1868, 65 0. L. 49, § 5. 

Sec. 6. That all rules and regulations for the government of the 
police force established by the metropolitan police commissioners, as 
provided tor by the act to which this is an amendment, not inconsist¬ 
ent with the provisions of this act, shall continue in force until altered, 
amended or abolished by the board of police commissioners provided 
for by this act. Act of 1868, 65 0. L. 49, sec. 6. 

Sec. 7. That sections one, two, three, four, five, six, eight, nine, 
eleven, thirteen, twenty-one, twenty-three, twenty-six, twenty-nine, 
and thirty-five, of the act to which this is an amendment, be and the 
same are hereby repealed. Act of 1868, 65 0. L. 49, § 7. 

Sec. 8. Said board shall assume and exercise the entire control of 
the police force of said city, and shall possess full power and authority 
over the police organization, government, appointments and discipline 
within said cities. It shall have the custody and control of all pub¬ 
lic property, books, records and equipments belonging to the police de¬ 
partment, and shall have power to erect and maintain all such lines 
of telegraph in such places within the said city, as for purposes of po¬ 
lice the board shall deem necessary, whenever the common council 
shall authorize the establishment of such telegraph line or lines, and 
provide for the cost thereof. Act of 1866, 63 O. L. 105, § 7. 

Sec. 9. Any citizen of such city, with a view to the trial and sus¬ 
pension or removal from office of any officer or patrolman of the police 
force, may on oath, in writing, prefer or make before the board, charges 
or complaint touching the character and competency, or affecting the 
acts, conduct or omission of such officer or policeman, or for viola¬ 
tion of or misconduct, as defined or prescribed by the rules and regu¬ 
lations of the board ; and said board, after reasonable notice, in the 
discretion of the bo^rd, to the person charged, shall proceed to the 
trial of said officer or policeman on such charges or complaint, and 
shall have power to and shall issue subpoenas, attested in the name of 
the president of the board, to compel the attendance of witnesses, to 
administer oaths and affirmations, and generally shall, for the purposes 
of such trial, have and exercise the powers and duties of justices of 
the peace in civil cases, so far as the same are applicable, and may 
make an order of removal or suspension for some certain period. If, 
on such trial, said charges or complaint shall be sustained, such of¬ 
ficer or policeman shall pay the cost of such proceedings, and the same 
may be deducted and withheld from his pay, and in case of his suspen¬ 
sion, his pay shall also cease from the date of the charges and during 
the period of suspension. In trials under this section the same costs 
shall be charged and taxed as in trials before justices, and be collected 
on execution, to be issued by the police clerk of said cities on certifi¬ 
cate of the same by the board, and order for execution, said costs 
when collected to be paid to the treasurer of the board for the benefit 
of those concerned; but the said board shall not tax or receive any 
fees for themselves or for any member thereof. Act of 1866, 63 0. 
L. 107, § 10. 


15 


[ 226 ] 

Sec. 10. Whenever any member of the police force in actual per¬ 
formance of his duty, and in consequence of the performance of such 
duty, shall become bodily disabled, his necessary expenses during the 
time his disabilities, as aforesaid, continue and consequent thereon, 
may be paid from the fund provided for in the preceding section, at 
the discretion of the said board of police. The board shall inquire 
into the circumstances, and if satisfied the charge upon said fund is 
correct, may, in writing, order the same to be paid by the draft of 
the said trustees upon the said fund, each trustee writing his signature 
thereto; but the provisions of this section shall not apply to special 
patrolmen appointed as hereinafter provided, at the request and ex¬ 
pense of private parties. Act of I860, 63 O. L. 108, § 12. 

Sec. 11. It is hereby made the duty of the board of police, for 
more effectually distributing and enforcing its police government and 
discipline, to divide the said cities into precincts without regard to 
ward boundaries, and to assign captains of police and sergeants of po¬ 
lice to each of the said precincts as they shall deem for the best inter¬ 
est of said cities. The board may, from time to time, establish a sta¬ 
tion or sub-station in each precinct or division for the accommodation 
of the police force on duty therein. It shall promulgate all regula¬ 
tions and orders through the superintendent of police ; and it shall be 
the duty of the police force to respect and obey the said superintendent, 
subject to the rules and regulations and general orders of the board. 
Act of 1866, 63 0. L. 108, § 14. 

Sec. 12. The said board of police is hereby authorized to appoint 
peisons of suitable character who may be in the employment of the 
city in other branches or departments, special policemen or patrolmen ; 
provided, such special policemen shall not be paid for their services as 
policemen either from the police fund or the city or county treasury. 
Such policemen shall possess the same power as the regular police pa¬ 
trolmen and shall obey the rules and regulations of the board, and 
conform to its general discipline. Act of 1866, 63 O. L. 108, § 15. 

Sec. 13. The board of police, whenever it shall see fit, may, on the 
application of any person or persons, showing the necessities thereof, 
appoint and swear in any number of additional patrolmen to do duty 
at any place within the cities, at the charge and expense of the person 
or persons by whom the application shall be made, and the patrolmen 
so appointed shall be subject to the orders of the board of police, and 
shall obey the rules and regulations of the board, and conform to its 
general discipline, and to such other special regulations as may be 
made, and shall wear such dress or emblem as the board may direct, 
and shall, during the term of their holding appointment, possess all 
the powers, privileges and duties of the patrol force herein prescribed ; 
provided, however, that the party so applying for such appointment 
shall have first paid into the trust fund hereinbefore provided for, the 
sum of five dollars for each special patrolman thus appointed. The 
person so appointed may be removed at any time by the board of po¬ 
lice, without assigning cause therefor. Act of 1866, 63 O. L. 108, 
§16. 


[227 ] 

Sec. 14. No member of the police force, under penalty of forfeiting 
the pay which may be due to him, shall withdraw or resign from the 
police lorce, unless he shall have given two weeks’ notice thereof, in 
writing, to the superintendent of police ; no person who shall ever, for 
cause, have been removed from the police force established by this act, 
shall be reappointed by the board of police to any office in the said 
police lorce, except by the unanimous consent of the board. Act of 
1866, 63 O. L. 109, § 17. 

Sec. 15. All stolen or other property taken by the members of the. 
police force, shall be deposited and kept in a place designated by the 
board of police; and in case of the neglect or refusal of any officer to 
so deposit the property taken or found in the possession of any person 
or persons arrested, he shall be deemed guilty of a misdemeanor, and 
subject to indictment or information, and be lined in a sum not exceed¬ 
ing three thousand dollars, and in no case less than the value of the 
property, or be imprisoned in the county jail not exceeding one month ; 
and the sentence of the court in such cases, shall operate to vacate the 
office of the person so convicted. Every such article of property shall 
be entered in a book kept for that purpose by the secretary of the 
board, together with the name of the owner, if ascertained, and the name 
of the place where found, and of the person from whom taken, with the 
general circumstances and the date of its receipt, and the name of the 
officer recording the same. An inventory of all money or other prop¬ 
erty shall be given to the party from whom the same was taken ; and 
in case the same shall not, within thirty days after such arrest and 
seizure, be claimed by any other person or persons, it shall, unless oth¬ 
erwise ordered by the board, be delivered to the person from whom the 
same was taken, and to no other person, either attorney, agent, factor 
or clerk, except by special order of the board. In case said money or 
property shall, within thirty days, be claimed by any other person or 
persons, it shall be retained by said custodian until alter the discharge 
or conviction of the person from whom the same was taken and so long 
as the same may be required as evidence in any case in court, and if 
such claimant or claimants shall establish, to the satisfaction of the 
police judge, that he or they are the rightful owners, the same shall be 
restored to him or them ; otherwise it shall be returned to the accused 
personally, and not to any attorney, agent, factor or clerk of such ac¬ 
cused person, except upon special order of the board, after all liens and 
claims in favor of the board and the city, against the same, shall have 
first been discharged and satisfied. The board shall cause to be kept 
books for the registry of lost, missing or stolen property, for the gen¬ 
eral convenience of the public, and of the police force of the city. It 
shall also cause to be kept books of record, wherein shall be entered 
the name of every member of the police force, his time and place of 
nativity, the time and place where he became a citizen (if he was born 
out of the United States), his age, his former occupation, number of 
family, and the residence thereof; the date of appointment or dismissal 
from office, with the cause of the latter; and in every such record suf¬ 
ficient space shall be left against all such entries, wherein to make 


[ 228 ] 

record of the number of arrests made by such members of the police 
force, or of any special services deemed meritorious by the captains of 
police. It shall also cause to be kept in proper books, the accounts 
of the board, and a record of their proceedings ; and they shall pre¬ 
serve and file copies of all bills audited and allowed, and keep an ac¬ 
curate account of all the expenses of the police department. The board 
of police shall also cause to be kept and bound, all police returns and 
reports. Act of 1866, 63 0. L. 109, § 18. 

Sec. 16. It shall be the duty of the board of police to provide, 
when it shall be required, at the expense of said city or cities, all nec¬ 
essary accommodations, within such precincts as shall be contained 
within the boundaries of said city or cities for the station-house re¬ 
quired by the board of police, for the accommodation of the police force 
of such precincts for the lodging of vagrant and disorderly persons, and 
for the temporary detention of persons arrested for offenses. It shall 
also be the duty of said board of police to furnish the same suitably, 
and to warm and light the same by day and night; and in every case 
of arrest, the same shall be made known to the captain or sergeant 
upon duty in the precincts wherein such arrest was made, by the per¬ 
son making the same, and it shall be the duty of the said captain or 
sergeant, as soon as practicable after such notice, to make written re¬ 
turn thereof, according to the rules and regulations of the board of 
police, together with the name of party arrested, the offense, the place 
of arrest and the place of detention. All persons arrested by the officers 
or members of the police force shall be detained, while in their custody, 
only in the places provided for that purpose ; and no trial or examina¬ 
tion of any persons arrested shall be held in the office of the superin¬ 
tendent of the police, or of the board; but the persons so arrested 
shall be examined in the police court of said city or cities before the 
police judge, or, in the absence of the judge, before the mayor. Neces¬ 
sary and usual articles of clothing or personal apparel upon the per¬ 
son, or in the possession of persons arrested and detained, shall not be 
taken or seized by the police, unless there be reason to suspect that 
the clothing has been stolen or obtained unlawfully. The board of 
police shall provide suitable accommodations within said city or cities 
for the detention of witnesses who are unable to furnish security for 
their appearance in criminal proceedings, and such accommodations 
shall be in apartments other than those employed for the confinement 
of persons charged with crime, fraud, or disorderly conduct; and it 
shall be the duty of the police judge, in committing witnesses, to have 
regard to the rules and regulations of the board of police in respect to 
their detention. Every person arrested by the police, charged with 
the violation of any city ordinance, may give special bail for his ap¬ 
pearance to answer to such charge ; but no member of the police force 
shall become or furnish bail for any person arrested. Act of 1866, 63 
0. L. 110, § 19. 

Sec. 17. The necessary expenses for the maintenance of the police 
department hereby created within the said city or cities, shall be a 
city charge. Act of 1866, 63 0. L. Ill, § 20. 


[229] 

Sec. 18. All moneys hereafter to be paid to any person or persons 
out of the police fund shall be certified by the president or acting 
president of the board of police, to the secretary, who shall draw his 
warrant on the treasurer therefor, stating therein the fund to which it 
is chargeable, and the person to whom payable; and such warrant 
shall be countersigned by the president, or, in his absence, by the 
acting president of the board of police. Act of 1866, 63 0. L. Ill, 
§ 22 . 

Sec. 19. The board of police shall, at all times, cause the ordi¬ 
nances of the city to be properly enforced; and it shall be the duty 
of said board at all times, whenever consistent with the rules and 
regulations of said board, and with the requirements of this act, to 
furnish all the information desired, and comply with all the requests 
made by the city council of said cities, or by the mayor thereof, to 
quell riots, suppress insurrections, protect the property, and preserve 
the public tranquillity. The board of poliee shall have the power to 
issue subpoenas, tested in the name of its president, to compel before 
it the attendance of witnesses before any proceeding authorized by its 
rules and regulations. Each commissioner of police, the superintend¬ 
ent of police, and the secretary of the board of police, are hereby 
given power to administer, take, receive and subscribe all affirmations 
and oaths to any witnesses summoned and appearing in any matter 
or proceeding authorized as aforesaid, or to any depositions necessary 
by the rules and regulations of the board. Any willful and corrupt 
false swearing by any witness or person making oath or deposition be¬ 
fore any of the officers last mentioned, to any material fact, in any 
necessary proceedings under said rules and regulations, shall be 
deemed perjury, and punished in the manner now prescribed by law 
for such offense. The provisions of law now existing in respect to 
attachment of witnesses before the police court and justices of the 
peace, and to the compulsory attendance of the said witnesses, to ap¬ 
pear and testify before them, are hereby applied to the case of wit¬ 
nesses subpoenaed before the board of police. Act of 1866, 63 0. L. 
112, § 24. 

Sec. 20. The board of police shall require and make suitable pro¬ 
visions respecting security to be entered into by any and all members 
of the police force, for the taking, by the members of the police force, 
of an oath of office, and the registry of the certificate of the same in 
a book, to be kept for that purpose by the board, which oath of office 
may be taken before any commissioner of police, who is hereby em¬ 
powered to administer and receive the same. Act of 1866, 63 0. L. 
112, § 25. 

Sec. 21. No person holding office under this act shall be subject 
to jury duty, or to arrest on civil process, while actually on duty. 
Act of 1866, 63 0. L. 112, § 27. 

Sec. 22. It shall be a misdemeanor, punishable by a fine not ex¬ 
ceeding one hundred dollars, or imprisonment in the county jail not 
less than one month, nor more than three months, or both fine and 
imprisonment, for any person, without justifiable or excusable cause. 


[230] 

to use personal violence upon any member of the police force, when 
in the discharge of his duty, or for any person, not a member of the 
police force, to falsely represent himself as being such member with 
a fraudulent design. Act of 1866, 63 0. L. 112, § 28. 

Sec. 23. Any one of said commissioners, or any member of the 
police force, who shall, during his term of office, accept or hold any 
office elective by the people, or who shall, during his term of office, 
be publicly nominated for any office elective by the people, and shall 
not, within ten days succeeding the same, publicly decline the said 
nomination, shall be, in either case, deemed thereby to have resigned, 
and to have vacated his office as such commissioner. Act of 1866, 
63 0. L. 113, § 30. 

Sec. 24. The city council of said cities are hereby empowered and 
directed, annually, to order and to cause to be collected and raised by 
a tax upon the estates, real and personal, subject to taxation according 
to law, within the said cities, the sums of money as aforesaid, annu¬ 
ally estimated for the said total expense of the metropolitan police, 
authorized by this act. Act of 1866, 63 O. L. 113, § 31. 

Sec. 25. In case at any time, or for any cause, the services of 
a deputy superintendent shall be required, the board of police are 
hereby authorized to appoint any member of the police force to act in 
that capacity. Act of 1866, 63 0. L. 113, § 32. 

Sec. 26. No policeman or officer of police shall, while on duty, be 
at liberty to enter any drinking or gaming saloon, or other place where 
liquors are sold to be drank on the premises, or house of prostitution, 
except for the purpose of discharging some of the duties of his office. 
Act of 1866, 63 O. L. 113, § 33. 

Sec. 27. The offices of city marshal and deputy marshal of said 
cities, are hereby abolished, and the duties of said offices shall here¬ 
after be performed by the superintendent of police, or by the captains 
and sergeants of police, under his directions, in accordance with the 
provisions of this act; but this section shall not be operative until the 
superintendent of police, or captain of police, authorized by this act 
to be appointed, shall be sworn into office. Act of 1866, 63 O. L. 
113, g 34. 

Sec. 28. This act shall take effect on the first day of May next. 
Act of 1866, 63 0. L. 114, § 36. 

Sec. 29. Be it enacted , etc., That cities of the first class which 
have been advanced to that grade between decennial periods, be and 
they are hereby divided into the same number of police districts as 
there are wards in such cities. Such police districts shall be bounded 
as the wards of such city are bounded and numbered as said wards 
are numbered, the first ward constituting the first police district of 
such city, the second ward constituting the second police district, and 
so on, each of such wards constituting a police district of such city. 
Act of 1868, 65 0. L. 151, § 1. 

Sec. 30. All powers and duties connected with and incident to the 
appointment, regulation and government of a police force, or connected 
with and incident to the police power and government of such city. 


[231] 

shall, in all cities of the class named in section one of this act, be 
vested in a police board, to be elected in the manner hereinafter spec¬ 
ified. Act of 1868, 65 0. L. 151, § 2. 

Sec. 31. On the second Tuesday of May, 1868, the qualified elect¬ 
ors of each of said police districts shall, by a plurality of votes, elect 
one member of the police board, who shall be a resident of and have 
the qualifications of an elector in the police district for which he is 
elected. Act of 1868, 65 0. L. 151, § 3. 

Sec. 32. The term of office of members of the police board shall 
be two years anil until their successors shall be elected and qualified; 
provided, however, that of the number elected at the first election to 
be held under the provisions of this act, the members of said board 
who are elected from police districts with even numbers, shall hold 
said office two years, and the members who are elected from police 
districts with odd numbers shall hold their office one year ; and there¬ 
after elections of members of the police board shall be held in such po¬ 
lice districts at the regular annual city election, according as the term 
of office of the member of the police board from that district shall 
expire. The city council shall have power to fill any vacancy that 
may occur in the police board by appointing a member thereof who 
shall hold office until the next regular city election, when a member 
shall be elected from the proper police district to fill such vacancy for 
the unexpired term ; provided, that the city council shall appoint no 
person as a member of said police board who is not a resident of and 
elector in the police district for which he is appointed. Act of 1868, 
65 O. L. 151, § 4. 

Sec. 33. The members of the police board so elected and the 
mayor of such city (who shall be ex-officio a member) shall consti¬ 
tute the police board of such city. The mayor shall, when present, 
act as president of such board, and a majority of the members shall 
constitute a quorum for the transaction of business; before entering 
upon the duties of said office each member shall take and subscribe 
to an oath or affirmation faithfully and honestly to perform its duties. 
Act of 1868, 65 O. L. 152, § 5. 

Sec. 34. Said police board shall have power to appoint one captain 
of police, who shall also be acting superintendent, whose salary shall 
be fixed by the police board, but shall not exceed twelve hundred dol¬ 
lars per annum ; one sergeant of police for every ten patrolmen, whose 
salary shall not exceed nine hundred dollars per annum, and shall be 
fixed by the police board ; and such number of patrolmen as the police 
board may think expedient, but not exceeding one patrolman for each 
fifteen hundred inhabitants in such city; the salary of the patrolmen 
shall be fixed by the police board, but shall not exceed eight hundred 
dollars per annum. The police board may also appoint detectives or 
secret police, not exceeding three in number, whose salaries shall be 
fixed by the police board, but shall not exceed nine hundred dollars 
per annum. The police board may also appoint a secretary, and define 
his duties. The secretary of the police board shall hold his office dur¬ 
ing the pleasure of the board, and shall receive such compensation as 


[232] 

the board may determine, not exceeding nine hundred dollars per an¬ 
num. The members of the police board shall receive no compensation 
for the r services. All salaries of the members of the police depart¬ 
ment shall be paid monthly. The police hoard may, in case of emer¬ 
gency, appoint special patrolmen, hut shall report to the city council 
at its next meeting the names and number of such special patrolmen, 
the occasion of their appointment as such, and the length of time for 
which such appointments are made ; unless the city council shall ap¬ 
prove of such appointment, the same shall cease and terminate, and no 
payment shall be paid to any person for services as special patrolman 
until the same shall be approved by the city council. Act of 1868, 
65 O. L. 152. § 6. 

Sec. 35. The police board shall assume, have and exercise the en¬ 
tire control of the police force of said city, and shall make, publish 
and enforce rules and regulations for the government of such police 
force. It shall slso have the custody and control of all public prop¬ 
erty, books, records and equipments belonging to the police depart¬ 
ment. It shall have power at any time, for good cause shown, to sus¬ 
pend or remove any officer or member of the police force, or it may, 
at any time, by a vote of two-thirds of the members of the board, 
suspend or remove any officer or member of the police force without 
assigning any reason for such suspension or removal. Whenever it 
shall appear to the satisfaction of the board that any member or ofifp 
cer of the police force has received corruptly from any person any sum 
of money, gift, fee or reward, or has used his office for purposes of ex¬ 
tortion or oppression, it shall be the duty of the board to at once dis¬ 
miss the person so offending from the police force. The salary of 
any officer or member of the police force shall cease from the time of 
his suspension or dismissal. Act of 1868, 65 0. L. 152, § 7. 

Sec. 36. Any member of the police board, or any officer or mem¬ 
ber of the police force, who shall hold or accept any office which is 
elective by the people, shall be deemed thereby to have resigned his 
office of member of the police board, or as member of the police force, 
and such vacancy so created shall be filled in the manner provided by 
law. The city council shall have power to remove from office any 
member of the police board, three-fourths of such council concurring 
therein, but no member of said police board shall be removed from of¬ 
fice, except upon charges made in writing, and after opportunity given 
to be heard in his defense. Act of 1868, 65 0. L. 153, § 8. 

Sec. 37. It shall be the duty of the police board to prepare and 
submit to the city council, on’or before the first day of May in each 
year, an estimate of the whole cost and expense of providing for and 
maintaining the police department of said city within the current fis¬ 
cal year, which estimate shall be in detail, and shall be laid (by the 
city auditor) before the city council, and the same shall be, by the city 
council of said city or cities, provided for in the general tax assess¬ 
ment, by levy to be laid on property in said city. Said money, when 
collected, shall be paid into the city treasury, and shall be styled the 
“ Police Fund,” and shall be drawn out therefrom for police purposes of 


[233] 

said city, on- the order of the police board, as may be necessary to pay 
the expenses of the police department. Act of 1868, 65 0. L. 153, § 9. 

Sec. 38. No expenses, other than salaries and pay herein provided, 
shall be incurred by the police hoard, except for rents, record books, 
stationery, printing, telegraphing, badges, clubs and furniture of nec¬ 
essary rooms and stations, advertising, fuel and lights, and food for 
prisoners, unless the same shall be expressly authorized and provisions 
therefor made, as a city charge, by the city council of the cities within 
which the expenditures became necessary. The books and accounts 
kept by said board shall at all times be subject to the inspection of 
the city council, and the city council may, at any time, require any 
information respecting the same, the disclosure of which will not im¬ 
pair the usefulness and efficiency of the police department. Act of 
1868, 65 0. L. 153, § 10. 

Sec. 39. The acting superintendent of police shall make to the 
secretary of the board daily reports of such facts as may come to his 
knowledge from the patrolmen, and the secretary shall make to the 
board monthly reports, in writing, of the state of the police force, with 
such statistics and suggestions as he may deem advisable for the en¬ 
forcement of the police government and discipline. The boards of 
police shall, on or before the first Monday in March in each year, re¬ 
port in writing the condition of the police within said cities to the city 
council. Act of 1868, 65 0. L. 153, § 11. 

Sec. 40. From and after the passage of this act, the powers and 
duties of the metropolitan police commissioners shall cease and termi¬ 
nate in cities of the first class advanced to that grade between decen¬ 
nial periods. The city council of cities of that class shall, on and 
after the passage of this act, assume and exercise such of the powers 
and duties herein granted and imposed as may be necessary for the 
government and regulation of the police force of such city ; such city 
council to continue to exercise the powers thus granted until the elec¬ 
tion and qualification of the police board provided for in this act, and 
no longer. Act of 1868, 65 0. L. 154, § 12. 

Sec. 41. The provisions of an act entitled “an act to authorize 
the appointment of metropolitan police commissioners in cities of the 
first class with a population of less than one hundred thousand in¬ 
habitants at the last federal census,” passed April 5, 1866 (vol. 63 
0. L., p. 104), and of an act supplementary thereto, passed March 29, 
1867 (vol. 64 0. L., p. 80), shall not apply to cities of the first class 
which have been advanced to that grade between decennial periods, 
and the said acts of April 5, 1866,"and of March 29, 1867, in so far 
as the same apply to cities of the first class 'advanced to that grade 
between decennial periods, be andfthe f same are hereby repealed, to¬ 
gether with all statutes, parts of statutes, and provisions of law in¬ 
consistent with the provisions of this act. Act of 1868, 65 0. L. 
154, § 13. 

Sec. 42. The provisions of an act entitled an act to amend “ an 
act authorizing the appointment of metropolitan police commissioners 
in cities of the first class with a population of less than one hundred 


/ 


[ 234 ] 

thousand at the last federal census,” passed April 5,1866* (0. L. vol. 
63, p. 104), passed April 2, 1868, shall not apply to cities of the first 
class which have been advanced to that grade between decennial peri¬ 
ods. Act of 1868, 65 O. L. 154, § 14. 


SECOND-HAND FURNITURE AND OLD METAL. 

An act to regulate, in cities of the first and second class, stores or 

shops for the purchase, sale, or exchange of old metals, or second¬ 
hand furniture. 

[Passed and took effect March 31, 1804.—01 vol , Stat. 128 ] 

Sec. 1. Be it enacted, etc., That in all cities of the first and sec¬ 
ond class, every keeper of a shop or store for the purchase, sale, or 
barter of old metals, second-hand furniture, or second-hand articles of 
any kind, shall put up in some suitable or conspicuous place in his 
shop or store, a sign having his name and occupation legibly in¬ 
scribed thereon, and shall keep a book in which shall be written at the 
time of every purchase of any such old metals or second-hand articles, 
a description of the article or articles purchased, the name, age, and 
residence of the person from whom, and the day and hour when such 
purchase was made. 

Sec. 2. That no keeper of any such shop or store shall, directly or 
indirectly, purchase or receive, by way of barter or exchange, any old 
metals, second-hand furniture, or other second-hand articles, of any 
minor or apprentice, knowing or having reason to believe him td be 
such. 

Sec. 3. No keeper of any such shop or store shall purchase or re¬ 
ceive, by way of barter or exchange, any of the articles aforesaid from 
any person whatever, after the hours of nine o’clock at night, or before 
the hour of seven in the morning. 

Sec. 4. That any person violating the provisions of this act shall 
be deemed guilty of a misdemeanor, and upon conviction thereof, shall 
be fined in any sum not more than five hundred dollars, at the discre¬ 
tion of any court of competent jurisdiction. 

Sec. 5. This act shall take effect from and after its passage. 



APPENDIX. 


We have already stated that it was impracticable to republish in 
this work all the statutes and parts of statutes that relate to cities and 
villages. We have felt justified in departing from the rule of includ¬ 
ing none but statutes of a general nature, in favor of the two railroad 
acts, passed at the last session, by reason of their great importance. 
And we believe that an enumeration in this place of the acts relating 
to cities and villages, not embraced in this work, would serve no use¬ 
ful purpose. So far as they are general in their character, they are all 
collected in Swan & Critchfield’s and Swan & Sayler’s Statutes, and 
the 66th Volume of Laws. Among these is the act providing what 
municipal officers shall have copies of the annual volume of laws ; the 
act to prevent animals running at large in the streets ; the act to se¬ 
cure, in case of fire or other danger, safe egress from public halls and 
buildings ; the acts in relation to gas companies, houses of refuge and 
correction, reform schools, infirmaries, inspectors, street railroads and 
schools. Others of a local character are collected there, and all of this 
class relating to the city of Cincinnati, in force January 1, 1869, may 
be found in Disney’s collection of laws and ordinances and the supple¬ 
ment thereto. This includes the laws relating to the Cincinnati Hos¬ 
pital, schools and escheated lands in Cincinnati, the Covington and 
Cincinnati Bridge, and many others of like importance. Still others 
merely local or temporary, as the act relating to schools in Cleveland 
and some other cities, or the numerous acts conferring power to borrow 
money for sewerage, avenue, water-works and other purposes, must be 

sought in the annual volume of the laws. 

235 





. 

■ 

' 


INDEX. 


[ The figures refer to the pages.'] 


ACTS REPEALED, 186-200, 206, 209, 211, 214, 223, 233. 

ALLEYS —see Streets. 

AMENDMENT—of ordinance, how made, 33. 

ANIMALS—sale regulated, 57, 112. 
running at large, regulated, 57. 

ANNEXATION—as to water works, 88. 
wards in annexed territory, 97. 
of surplus territory cut off from township, 120. 
of contiguous territory for road purposes, 121, 122. 
territory subject to same assessments, 141. 

of territory on application of citizens residing thereon. 172, 173. 174. 
on application of corporation, 174, 175, 176. 
of contiguous corporations, 176, 177. 

APPEAL—from probate court to review assessment, 131. 

APPOINTMENT—of officers, 26, 49, 51, 52, 60, 61, 63, 72, 75, 78, 79, 96 
trustees of cemeteries, 91. 
park commissioners, 95. 
trustees of gas-works and measurers, 104. 
of wharfmasters, etc., 111. 
special board of improvements, 125. 
saving of existing appointing power, 182. 

APPRENTICES—minors apprenticed, 69. 

APPROPRIATION—of private property, 58. 

for what purposes and how done, 125-133, 217, 219. 
of money, must be by ordinance, 33. 

ASSESSMENTS—for water-works, 89. 
for laying gas-pipes, 105. 
for lighting bridges and railways, 106. 
for sprinkling streets, 106, 107. 
for tilling up lots and removing nuisances, 114. 
reported by board of improvements, 125. 
for damages in appropriating private property, 129, 130, 
rules of assessment, 133-142. 
reassessments, 136-141. 
for damages for improvement, 146, 147. 
special assessments, how made, 147-151. 
for sidewalks, 151. 
for canals and water-courses, 153. 
for sewers, 155, 157, 158, 159, 160. 
for sewers, constitutional, 157. 
for house connections and branches, 161. 

AUCTIONEERS—regulated, licensed, etc., 57, 112. 

237 




[ 238 j 


AUDITOR—of cities, 25, 31. 

powers and duties of, 42, 43. 

of county to enter assessments on duplicate, 140, 149, 150, 159 
percentage placed on tax duplicate, 165. 
to enter delinquent tax on duplicate, 166. 
in numbering lots, 211, 212. 

BEEll, ALE, Etc. —in incorporated villages for special purposes, 23. 
in cities and villages, 55, 56. 

BILLIARD TABLES, 55. 

BOARD OK DIRECTORS OF INFIRMARY, 77. 

BOARD OF DIRECTORS OF HOUSE OF REFUGE, Etc., 63. 

BOARD OF DIRECTORS OF WORK-HOUSE, 72. 

BOARD OF EQUALIZERS. 150. 

BOARD OF HEALTH—established, etc., 58. 
powers and duties, 78-83. 

BOARD OF HOSPITAL COMMISSIONERS, 74-77. 

BOARD OF IMPROVEMEN IS, 123-125. 
powers and duties, 124, 125. 
to report estimated assessment, 150. 
to have sidewalks repaired, 151. 
to devise plans for sewerage, 154, 155. 
to give notice of sewerage, 155, 156. 
to recommend house connections, 161. 
to recommend lease or sale of property, 171. 
of metropolitan police, 220-234. 

BOARD OF REVISION, 167. 

BONDS—of officers, 28, 29, 40, 51. 
of policemen, 60. 
of inspectors, 117. 
for taking private property, 130. 
tax raised to pay bonds, 164-167. 
how paid, 166. 

issue of bonds, etc., to extend time of payment, 168. 
shall express on face, what, 169. 
how sold, 169. 

sinking fund to extinguish, 170. 

BORROWING MONEY—by corporation, 13. 

power to borrow and issue bonds, 168-170. 
of' wards established, 97. 

BOUNDARIES OF 1 OWNSIIIP— identical with corporation, 119 
change of boundaries, etc., 120. 

BRIDGE. - ') in incorporated villages for special purposes, 22. 
to repair and keep in order, 57. 
expense reported to state auditor by clerk, 41. 
to provide for lighting, 105, 106. 
council to control, 107-110. 
when improvements to be made, 124. 
private property appropriated lor, 127. 
taxes for keeping up and maintaining, 163. 
levy for construction of, 164. 

BUILDINGS—erected, etc., 58. 

wooden prohibited, when, 84. 

BURIAL ^—see Gem etkuy. 

BY-LAWS —see Ordinances. 


[239] 


CANALS—constructed, etc., 57. 

private property appropriated for, 127. 
expense of improving, etc., assessed, 153. 

CARRIAGES — see Vehicles. 

CEMETERY—in incorporated villages for special purposes, 23. 
in cities and villages, 58. 
trustees of, powers and duties, 90-95. 
price and sale of lots, 92. 
private property appropriated for, 126. 
taxes assessed lor, 133. 
tax for grounds and improving them, 164. 

CENSUS—when taken, 20. 

CHIEF OF POLICE—in city of the first class, 25. 
powers ami duties of, 44, 62. 
may examine pawn-broker’s books, 113. 

CITY OF FIRST CLASS—classification, 11. 
officers of, 25. 
general powers of, 54-58. 
power to levy taxes, 163-167. 
loan in anticipation of revenue, 168, 170. 
duty of state olficers in ascertaining grade, 180. 
saving of exisiing rights, 181-182. 
of metropolitan police, 220-234. 

CITY OF SECOND CLASS—classification, 11. 
advanced to city of first class, when, 12. 
manner of such advancement, 20. 
olficers of, 25. 
general powers of, 54-58. 
power to levy taxes, 163-167. 
loan in anticipation of revenue, 168-170. 
proceedings to surrender municipal rights, 178-18C 
duty of state officers in ascertaining grade, 180. 
saving of existing rights, 181, 182. 
as to second hand furniture, 234. 

CITY COMMISSIONER—superintendent of streets, 25. 

CIVIL ENGINEER—25, 31, 47. 

member of board of improvements, 123. 
to estimate cost of sewerage, 156. 

CLEANING OF STREETS—57, 107. 

CLERlv—of incorporated villages for special purposes, 21. 
his duties, 24. 
of cities and villages, 25. 
to open return of elections, etc., 28. 
record ordinances, certificates, etc., 34. 
duties and powers, 41, 42, 43, 119. 
to record plat of cemetery grounds, 94. 
notice of application for street railroad, 101. 
to certify unpaid assessment, 140. 

to apply to court for costs on inquiry lor assessment, 146, 

to certify delinquent tax to county auditor, 166. 

to certify special assessment to county auditor, 166. 

to sign bonds, notes, etc., 169. 

duty in annexation of territory, 173-177. 

duty on surrender of municipal rights, 178, 179. 

CLERlv OF POLICE COURT—powers and duties, 51, 52. 


[240] 

COMMISSIONERS OF COUNTY—duties of, in the creation of incorpo¬ 
rated villages, 14. 
must make complete record, 15. 
when the territory is in two or more counties, 16. 
to provide compensation for police judge, 49. 
fix bond of clerk of police court, 51. 
salary for prosecuting attorney, 52. 
as to change of township boundaries, 120. 
proceedings in annexation of territory, 172-175. 

COMMISSIONERS APPOINTED TO ARRANGE TERMS OF AN¬ 
NEXATION, 177. 

CONSTITUTION—provision as to cities, 11. 
as to right of trial, 67. 
as to acts of a general nature, 137. 

COUNCIL OF CORPORATION—duty when city or village advanced, 20. 
to designate places of election, 27. 
legislative authority vested in, 29. 
organization of, 30. 
rights, duties, etc., 31, 32, 40, 41. 
votes recorded on journal, 33. 
to provide prison, 37. 

may require settlements with treasurer, 45. 

to prescribe rules for police court, 49. 

fix bouds of clerk of police court, 51. 

to appropriate surplus fines to benefit of schools, 52. 

salary for prosecuting attorney, 52. 

to provide for juries in mayor’s court, 52. 

to provide for vagrants, 59. 

to provide for police, 60, 61. 

to erect and maintain prison, 62. 

to erect and maintain house of refuge, 63, 64. 

to approve rules and regulations, 65. 

to provide for expenses, 70. 

to provide for expenses of work-house, 72, 73. 

to approve action of hospital commissioners, 75. 

to contract with another corporation, 77. 

power as to infirmaries, 77, 78. 

to appoint board of health, 79. 

appropriations for board of health, 83. 

power as to fire department, 83. 

to construct water-works, 85. 

to make annual investigation, 86. 

tax for water-works, 89. 

power as to cemeteries, 90. 

to prohibit interment of the dead within corporation, 95 

power as to parks, 95. 

power as to public halls, 96. 

power as to street railroads, 98-101. 

to regulate gas companies and price of gas, 101-105. 

to provide for lighting bridges and railways, 105, 106 

may order streets to be sprinkled, 106. 

care, control, etc., of streets, 107-110. 

to establish wharves, docks, etc., 110, 111. 

to establish ferries, 111. 

to license shows, auctioneers, etc., 111-113. 


[241] 


to regulate markets, 115. 

to license gaugers and inspectors, 116. 

property vested in, 119, 120. 

power as to labor on the streets, 121, 122. 

power to vacate streets, etc., 122. 

to establish board of improvements, 123-125. 

subject to report and recommendation of board, 124 

to appropriate private property, 127, 128. 

vote of two-tliirds necessary, 133. 

power as to assessment, 140, 141. 

to declare necessity for public improvement, 143. 

determination as to claims for damages, 143-146. 

to appoint assessors of damages, 147. 

to determine how special assessments to be made, 147. 

to publish notice of assessment, 150. 

to provide for sidewalks, 151. 

sidewalks on turnpikes, 151, 152. 

to provide for sewerage, 153-155. 

to construct sewers, 156. 

assessment for sewers, 157-160. 

to provide for house connections, 161. 

to repair sewers and drains, 162. 

to levy taxes for general and special purposes, 163-167. 

to anticipate levies by temporary loans, 168-170. 

to create a sinking fund, 170. 

to lease or sell corporate property, 171. 

to submit question of annexation to voters, 173-177. 

duties on surrender of municipal rights, 178. 

to visit and inspect benevolent institutions, 181. 

as to metropolitan police, 224. 

COURT—to make special rules for assessment, 137-140. 
power to restrain, etc., 183. 

CRIMES AND MISDEMEANORS IN INCORPORATED VILLAGES 
FOR SPECIAL PURPOSES, 23. 
jurisdiction of mayor, 37-39. 
escape of infected person, 80. 
violation of the rules of the board of health, 83. 
pollution or injury of water, 90. 
violating law as to old metal, etc., 234. 

DAMAGES—for injuries by excavation, 123, 153, 154. 
for appropriation of private property, 129, 132. 
where property abuts public improvement, 143, 147. 

DEDICATION OF STREETS, lu7, 108, 202-207. 

DISORDERLY HOUSES IN INCORPORATED VILLAGES FOR 
SPECIAL PURPOSES, 23. 
in cities and villages, 55. 

DOGS—destruction of, etc., 57. 

DRAINS —see Sewers. 

DRAYS—use of regulated, 57. 
width of tire, 109. 
licensed, 111, 112. 

ELECTION—first in incorporated villages, 16. 

when incorporated villages for special purposes advanced, 18-21. 

16 


[ 242 ] 


ELECTION— Continued. 

annual and special, 27-30. 

of representatives in new wards, 97. 

for annexation of contiguous territory, 176. 

for surrender of municipal rights, 178. 

in relation to election of justices of the peace, 182. 

ENGINEER —see Civil Engineer, Fire Engineer, Etc. 

EQUITY—courts of, power, 183. 

EVIDENCE—how ordinances made, etc., 34. 
copies of surveys of port warden, 111. 

EXCAVATION—depth allowable, 123.. 
damages occasioned by, 144, 145. 

EXEMPTION—of cities from the code, 61, 62. 

FAST DRIVING—how prevented, 57. 

FEES—council to prescribe, when, 26. 
no change during term, 27. 
of marshal, 24, 43, 44. 
of members of council, 31. 
of mayor, 38, 40, 54. 
of clerk, 42. 
trustees of villages, 24. 
county commissioners, 17. 
county recorder, 17. 
chief of police, 44. 
treasurer, 45. 
solicitor, 46. 

street commissioner, civil and fire engineer, superintendent of mar- 
. kets, 47, 84. 
police judge, 49. 
in police court, 50. 
clerk of police court, 57. 
prosecuting attorney, 52. 
policemen, 61. 
for feeding prisoners, 62. 
board of directors of house of refuge, 64. "i 
committing to work-house, 73. 
employes of hospital, 75. 
trustees of cemeteries, 91. 
park commissioners, 96. 
inspectors, 118. 

board of improvements, 125. ‘ > 

FERRIES—licensed, established and regulated, 58, 111. 

FILLING UP LOTS, 114. 

FINANCE —see Taxes. 

FINES AND PENALTIES—paid to whom, 24, 40, 44, 45, 46, 5L 
officers liable to, when, 31, 41, 42. 
ordinance enforced by imposition of, 35, 36. 
for escape of infected person, 80. 
violation of rules of board of health, 83. 
for pollution of water, 90. * 

failure to show books by pawnbroker, 113. 
for refusal to labor on streets, 121. 
for diverting funds from legitimate use, 170. 
for misappropriation of sinking fund, 170, 171. 


[ 243 ] 


FIRE—to guard against, 57. 

FIRE DEPARTMENT—established, etc, 41, 58. 
engineer, 25, 47. 

buildings erected, apparatus, etc., 84. 
appropriation of property for, 126. 
taxes levied and assessed for, 133, 163, 164. 

GAS—pipes laid down, 57. 

companies regulated, 101-105. 
powers and duties of trustees, 104, 105. 
private property appropriated, 126. 
taxes levied and assessed for, 133, 163, 164. 

GRADE—of street, 22. 

where railroads are constructed, 101. 
of wharf regulated, 110. 
when changed how paid for, 141-143. 
of cities ascertained, 180. 

GUNPOWDER—kept, transported, etc., 35, 57. 
venders of licensed, 112. 

HALLS—in incorporated villages for special purposes, 23. 
in cities and villages, 58. 
to erect and control, 96. 
private property appropriated for, 126. 
taxes levied and assessed for, 133, 164, 165. ] ... 

HAY—regulate weighing of, 57. 

HEALTH —see Board of Health. 

in incorporated village for special purposes, 23. 
health officer, 80. 

HIGHWAY —see Streets. 

HOGS—running at large regulated, 57. 

carcasses prohibited in streets, 78, 79. 

HOSPITALS—erected, etc., 58. 
for prisoners, 59. 

powers, duties, etc., of board, 74-77, 80. 
private property appropriated for, 126. 
taxes levied and assessed for, 133, 164. 

HOUSE OF REFUGE, Etc.— directors of, etc., 36, 37, 63. 
powers and duties of, etc., 63-72. 
superintendent of, 64, 65. 
private property appropriated for, 126. 
taxes levied and assessed for 133, 163,164. 
directors must concur in sale of property, 171. 

HUCKSTERS—licensed and regulated, 112, 115. 

IMPRISONMENT—council may provide for, 36. 
for vagrancy, etc., 59. 
in work house, 73. 
in house of refuge, 66-72. 

INCORPORATED VILLAGES—classification, 11. 
advanced to city of second class, when, 12. 
organization of, application, etc., 13, 14,15. 
jurisdiction of officers, 17. 
when complete on advancement, 16. 
advanced to city of the second class, 19. 


[ 224 ] 

INCORPORATED VILLAGES— Continued. 

- officers of, 25. 

shall not have power to prohibit burial in cemetery, 95. 

to appoint board of improvements, 125. 

to levy taxes, 163-167. 

loans in anticipation of revenue, 168, 169. 

proceedings to surrender municipal rights, 178, 179. 

INCORPORATED VILLAGES FOR SPECIAL PURPOSES—classifica¬ 
tion, 11. 

include special road districts, 12. 

advanced to incorporated village when, 12, 17. 

organization of, proceedings, petition, etc., 13, 14, 15. 

jurisdiction of officers, 17. 

proceedings on advancement, 17, 18. 

corporate authority vested in trustees, 21. 

power and duties of trustees, 22, 23, 24. 

to appropriate private property, 132. 

trustees may levy taxes, 162. 

loans in anticipation of revenue, 168, 169. 

proceedings to surrender municipal rights, 178, 179. 

INFANTS—committed to house of refuge, 66-72. 
admitted to work-house, 74. 

INFECTIOUS DISEASES, 80, 81. 

INFIRMARIES—erected, governed, etc., 77, 78. 
directors of, etc., 119, 120. 
private property appropriated for, 126. 
taxes levied and assessed for, 133, 163, 164. 
directors to concur in sale of property, 178, 179. 

Mf JUNCTION—to prevent incorporation, 15. 
to restrain misapplication of funds, 46. 
as to power of courts, 98-100, 153-154, 183-186. 

INSPECTORS—of provisions, etc., 116-118. 

INTEMPERANCE—in incorporated villages for special purposes, 23. 
in cities and villages, 55, 56. 

JAIL—county and corporation, 36. 
removal of prisoners to, 39. 
to build and regulate, 58. 

JUDGES—may commit to house of refuge, 66, 67. 
may commit to work-house, 73. 

JUDGES—of election, 28. 

JURY—before mayor, 52, 53. 
in police court, 49. 

grand jury to recommend commitment of infant, 67. ’ 
before probate court, 129. 
to assess damages, 146. 

JUSTICES OF THE PEACE—jurisdiction of, etc., 24, 36, 115, 182. 
clerk’s certificate, 41. 
may commit to house of refuge, 66. 
may commit to work-house, 73. 

LEVEES—private property taken for, 127. 

taxes levied and assessed for, etc., 133 164 

LIBRARIES—established, 58. ’ 

levy for maintaining, 164. 


[ 245 ] 

LICENSES—signed by mayor, 38. 

as to public shows, 56, 111, 112. 
as to gunpowder, etc., 57. 
ferries, auctioneers, etc., Ill, 112. 
pawnbrokers, 113. 
gaugers and inspectors, 116, 118. 

LIEUTENANTS OF POLICE, 26, 39, 44. 

LIGHTING—streets, etc., 57. 

bridges and railways, 105, 106. 
private property appropriated for, 127. 
taxes levied and assessed for, 163. 

LIENS—tax for water-works, 89. 
for laying gas-pipes, 105. 
for lighting bridges and railways, 106. 
for sprinkling streets, 107. 
for filling up lots and removing nuisances, 115. 
for special assessments, 135-141. 
for sidewalks, 151. 
for sewerage, 159. 
for sinking-fund taxes, 170. 

MARKETS—superintendent of, 25, 47. 

houses erected, regulated, etc., 58, 115, 116. 
hucksters regulated, 112. 
improvements made when, 124. 
private property appropriated for, 126. 
taxes assessed for, etc., 133, 164. 

MARSHAL—of incorporated village for special purposes, 21, 24. 
of cities and villages, 25, 26. 
duties and powers, 43, 44, 62. 
taxes for payment of, 163. 
continuance in office, 179, 182. 

MAYOR—duty of when city or village advanced, 20. 
in villages and cities, 25. 
to give notice of election, 27. 
to approve bond of officers, 28, 29. 
when president of council, 30. 
may compel attendance on council, 32. 
may commit for offenses, 36. 
jurisdiction, powers, etc, 37-40. 
further powers and duties, 52, 53, 54, 80. 
to appoint police, 60, 61. 
may commit to house of refuge, 66. 
to appoint work-house directors, 72. 
may commit to work-house, 73. 
president of board of hospital commissioners, 75. 
to appoint overseers of the poor, 78. 
president of board of health, 79. 
to appoint sanitary police, 82. 
to appoint park commissioners, 95. 
to examine pawnbrokers’ books, 113. 
a member of board of improvements, 123. 
to apply to probate court for jury, 146. 
to notify owners to repair sidewalks, 157. 
to protest against expenditures, 167. 


[ 246 ] 


MAYOR— Continued. 

one of the board of revision, 167. 
to sign bonds, notes, etc., 169. 
to visit and inspect benevolent institutions, 181. 
continuance in office, 179, 182. 

MEMBERS OF COUNCIL—residents, 29. 
when defacto acts binding, 30. 
must not be interested in contracts, etc., 31. 
ineligible, removal, etc, 31. 
in new wards, 97. 
penalty for diverting funds, 170. 

MUNICIPAL CORPORATIONS—bodies politic, 12. 
officers of —see Officers. 
to provide for collection of fines, 35. 
general powers of, 54-58. 
surrender of municipal rights, 178. 
saving of existing rights, 181, 182. 

NINE-PIN ALLEYS—55. 

NUISANCES—in incorporated villages for special purposes, 23. 
in cities and villages, 55. 
power to abate and remove, 80, 81. 
streets kept free from, 107. 
removal of offensive substances, 114. 

OATH—of office, 25, 28, 50, 51. 

who may administer oaths, 32, 42, 47, 51. 
fire engineer may administer, 84. 
of inspectors, 117, 118. 
of assessors of damages, 147. 

OFFICERS—first election in incorporated villages, 16. 
jurisdiction of, fees, etc., 17, 26. 
first election after advancement, 19, 21. 
duty of, on advancement, 21. 
perpetuity of existing officers, 24, 179, 182. 
in cities and villages, 25, 26. 
term of office, 26, 30. 
eligibility, bond, etc., 28, 29. 
must not be interested in contracts, etc., 31. 
removed, what for, etc., 32. 
under supervision of mayor, 39. 
clerk’s certificate, 41. 
of police, 60. 
of work-house, 74. 
health officer, 80. 
of infirmary, 77. 
of hospitals, 75. 
of cemeteries, 91. 
tojlevy and collect taxes, 162-167. 
penalty for diverting funds, 170. 
of metropolitan police, 220-234. 

ORDINANCES when incorporated village for special purposes ad¬ 
vanced, 19. 

when city or village advanced, 21. 

in incorporated villages for special purposes, 21, 23, 24. 


[ 247 ] 


ORDINANCES-- Continued. 

for creation of officers, 25. 

to prescribe amount of bond, etc., 29. 

to prescribe meetings of council, 31. 

majority of council necessary, etc., 32. 

must be read three times, 33. 

recorded, published, etc., 34. 

how enforced, 35—38, 229. 

prescribe duties of auditor, 42. 

prescribe amount of compensation, 44, 51. 

who has jurisdiction, 48. 

provide for juries in mayor’s court, 52. 

provide for appointment of police, 60. 

for maintaining prisoners, 62. 

for regulating hospital, 76. 

for paying infirmary directors, 77. 

overseers of the poor, 78. 

as to board of health, 78. 

as to cemeteries, 93. 

extending police jurisdiction over parks, 96. 

as to boundaries of wards, 97. 

as to street railroads, 99, 100. 

as to gas-works, 101-105. 

for lighting bridges and railways, 105, 106. 

accepting dedication of street, 108, 109. 

as to ferries, 111. 

as to pawn-brokers, 113. 

as to gaugers and inspectors, 116-118. 

as to powers of infirmary directors, 119. 

as to board of improvements, 123. 

to appropriate private property, 127. 

for making improvements, 146. 

to specify time for payment of assessment, 148,149. 

on construction of sewers, 156. 

may discriminate, 158. 

for house connections, 161. 

for levying and collecting taxes, 162-168. 

accepting or rejecting annexation, 173. 

annexation on application of corporation, 175. 

submitting annexation to voters, 176. 

approval of annexation, etc., 177. 

continue in force until repealed, 182. 

PARKS—city council to contract for, 12. 
may be provided for, 58. 
commissioners, powers and duties, 95, 96. 
improvements made, when, 124. 
private property appropriated for, 126. 
taxes levied and assessed for, 133, 164. 

PAVEMENT —see Streets. 

where railroads are constructed, 100, 101. 
where gas-pipes are laid, 105. 

PAWNBROKERS—licensed, duties, etc., 113. 

PEDDLERS—licensed, 112. 

PEST-HOUSE—persons sent to, 80. 


[ 248 ] 

PETITION—for incorporated villages, 14. 

duty of court on hearing, 16. .. 

for advancing incorporated villages for special purposes, 18. 

for improvement and repair of streets, 23, 125. 

for change of boundaries, 120. 

for vacating street, etc., 122. 

to common pleas for review of assessment, 131. 

for annexation of territory, 172, 175. 

to enjoin annexation, 173. 

to surrender corporate rights, 178. 

PLANKROADS, Etc. —appropriated, 127. 
sidewalks on side of, 151, 152. 
when improved as other streets, 152, 153. 
right of toll not impaired, 153. 

POLICE—in incorporated villages for special purposes, 21. 
in cities and villages, 41, 58. 
organization, duties and powers, 60, 61. 
to arrest fugitive from house of refuge, 69. 
to perform sanitary duty, 82. 
jurisdiction over parks, 96. 
taxes for payment of, 163. 
metropolitan police, 220-234. 

POLICE COURT—powers and duties, 40, 48. 
may commit to house of refuge, 66. 
may commit to work-house, 73. 
continuance of, 182. 

POLICE JUDGE—powers and duties, 25, 32, 40, 47-52, 80. 
to visit and inspect benevolent institutions, 181. 

PRESIDENT OF COUNCIL—30. 
to sign ordinances, 34. 
supervision of prison, 39. 
member of board of revision, 167. 

PRISON—for corporation, 36-38. 
how fines worked out, 59. 
station-house erected, 62. 
private property appropriated for, 126. 
taxes levied and assessed for, 133, 164. 

PRIVY VAULTS—regulated, 80. 

private property appropriated for, 127. 

YPQ Q QQOOQPrl TAt* 1 Q < 

PROSECUTING ATTORNEY—powers and duties, 25, 52. 

PROSTITUTES—punished, 59. 

record of treatment, etc., 81. 

PUBLIC BUILDINGS—in incorporated villages for special purposes, 23. 
in cities and villages, 58. 
taxes levied and assessed for, 163, 164. 

RAILROADS—street, etc, 22, 98-101. 
to be lighted, 106. 
liable to assessments, 148. 

proceedings to establish in certain cities, 215-220. 

REAL ESTATE—in incorporated villages for special purposes, 23. 
by cities and villages, 58. 

may be sold by directors of house of refuge, 71. 
for what purposes may be appropriated, 126, 127. 


[ 249 ] 


REAL ESTATE— Continued. 

council may levy tax to buy, 163. 
council may lease or sell, 171. 

RECORDER—duty of as to transcripts of commissioners’ proceedings, 15. 
must not record, when, etc., 16. 
when territory in two or more counties, 17. 
when incorporated village for special purposes advanced, 19. 
when city or village advanced, 20. 
duty where territory annexed, 173. 
to file transcripts in annexation, 177. 
on surrender of municipal rights, 179. 
numbering of lots, 211, 212. 

REMOVAL—vacates office when, 26. 

of officers and members of council, 32.^ 
of policemen, 61. 
of officers of house of refuge, 66. 
trustees of cemeteries, 91. 
of inspectors, .117. 

of trustees of certain railroads, 216, 219. 
of commissioners of police, 223, 225. 

RESOLUTIONS —see Ordinances. 
on advancement, 20. 

for filling up lots and removing nuisances, 114, 115. 
on surrender of municipal rights, 178. 

RESTRAINING ORDER—see Injunction. 

RIOTS—in incorporated villages for special purposes, 23. 
marshal to suppress, 43. 
in cities and villages, 54, 55. 
police to suppress, 60. 

ROAD —see Streets. 

RULES AND REGULATIONS—of house of refuge, 65. 
of board of health, 80. 
of trustees of water-works, 86. 
of trustees of cemeteries, 91. 
for public halls, 97. 

SCHOOLS AND SCHOOL-HOUSES, 52, 58. 
private property appropriated for, 126. 
taxes levied and assessed for, 163,164. 
not to be sold except with consent of board, 171. 

SEAL—of corporation, 38, 42. 
of police court, 48. 
bonds, notes, certificates, sealed, 169. 

SECRETARY OF STATE—his duties, 19, 20. 

SEWERS—in incorporated villages for special purposes, 22. 
in cities and villages, 57. 
improvements, when made, 124. 
private property appropriated for, 127. 
damages occasioned by, 144, 145. 
pi an 8 for, 153. 

districts for sewerage, 155, 156. 
assessment for sewers, 156-160. 
house connections and branches, 161. 
may be tapped, 161. 

taxes levied and assessed for, 163, 164, 169. 
bonds to have number of district on them, etc., 169. 


[ 250 ] 


SIDEWALKS —see Streets. 

in incorporated villages for special purposes, 22, 23. 
care and supervision of by council, 107. 

SINKING FUND—tax for creating, 170. 

SOLICITOR—in cities and villages, 25, 31. 
duties and powers, 46. 
member of board of revision, 167. 
as to railroads in certain cities, 215, 218. 

SPECIFIC PERFORMANCE—power to decree, 183. 

SPRINKLING OF STREETS, 57, 106,107. 

STATION-HOUSE— see Prison. 

STREETS—report on expense, power to provide, etc., 41, 57. 
in incorporated villages for special purposes, 22, 23. 
use of for water-pipes, 87. 

not released from liability for pavement, etc., 100. 

occupied for gas purposes, 102-105.. 

to be sprinkled, 106, 107. 

kept open and in repair, 107. 

dedication accepted, 108, 203-207. 

who liable to labor on, 121, 122. 

may be vacated, 122, 123, 209. 

power of board of improvements over, 124, 125. 

private property appropriated for, 126, 130. 

change of grade at cost of corporation, 141. 

grading and paving crossings, 151. 

assessments for improvement of, 133-153. 

taxes levied for cleaning and improving, 164. 

commons changed to streets, 209. 

STREET COMMISSIONER—in cities and villages, 25, 47. 
in road districts, 121, 122. 
member of board of improvements, 123. 

SUPERVISOR —see Marshal. 

TAVERNS—in incorporated villages for special purposes, 23. 
in cities and villages, 56. 
licensed, 112. 

TAXES—report of clerk, 41. 

paid to city treasurer, 45. 

water-works, 89. 

for cemetery purposes, 93. 

can not be levied upon employment, 112. 

for road purposes, 121, 122. 

for special improvements, 133. 

for repairing streets, 149, 150. 

for street crossings, 151. 

for sidewalks, 152. 

incorporated village for special purposes, 162. 

in cities and villages, 163-167, 213. 

for creating a sinking fund, 170. 

on lots as numbered, 211. 

for poor purposes, 214. 

for metropolitan police, 230. 

THEATRICAL EXHIBITIONS, 23, 56, 


[ 251 ] 

TOWN PLATS—accurately made, 14. 
laid off, recorded, etc., 201-207. 
altered and vacated, 207, 210. 
numbering of lots, 211, 212. 

TRANSPORTATION—through streets, 57. 
in coaches and vehicles, 110. 
in ferries, 111. 

persons licensed for, 112, 113. 

TREASURER—of incorporated village for special purposes, 21, 24. 
of cities and villages, 25, 40. 
powers and duties, 44, 45, 119. 
as to water-works fund, 86. 
to tender amount of damages, 147. 
taxes collected and paid to, etc., 165, 166. 
continuance in office, 182. 

TRUSTEES—of villages, powers and duties, 18-24. 
of cemeteries, 90. 
of water-works, 85. 

of township, may unite with corporation, 92. 
to purchase cemetery grounds, 94. 
of gas-works, 105. 
of township abolished, when, 119. 

of incorporated villages for special purposes to levy taxes, 162. 
to issue bonds to extend time of payment, 168. 
continuance in office, 182. 
of railroads in certain cities, 216, 219. 

TURNPIKES—appropriated, 127. 
sidewalks on side of, 151, 152. 
when improved as other streets, 152, 153. 
right of toll not impared, 153. „ 

. I-idi 

VACCINATION, 82. 

VACANCY—in office on removal, 26, 27. 
power of council to declare, 29. 

■ —Jm , of mayor, how filled, 40. 

when policemen suspended, 61. 
trustees of cemeteries, 91. 

VAGRANTS—how punished, 59. 

committed to house of refuge, 66-81. 
prison provided for, 228. 

VEHICLES—regulated, 57, 109, 110. 

where there are street railroads, 101. 
licensed, 112, 113. 

VOTERS—who are qualified, 27. 

WARDS—election in, 27. * 

Number of police in, 60. 
boundaries established, 97. 

WATCH-HOUSE—see Prison. 

WATER-CLOSETS—established, 58, 80. 

private property appropriated for, 127. 

WATER-COURSE—constructed, improved, etc., 57-124. 
expense of improving assessed, 153. 
taxes for improvement of, 164. 




[ 252 ] 

WATER-WORKS—provided for, 58. 
construction of reservoirs, 85. 
trustees, powers and duties of, 85-89. 
contiguous territory or corporation used for, 88. 
private property appropriated for, 126. 
taxes levied and assessed for, 133, 163, 164. 
trustees to concur in sale of property, 171. 

WHARVES AND WHARFAGE—110,.111. 
when improvements made, 124. 
private property appropriated for, 126. 
taxes levied and assessed for, 123,163. 
change of grade at cost of corporation, 141. 
lease or sale, 171. 

WORK-HOUSE—imprisonment in, 36, 37. 
how fines worked out, 59, 67. 
established aud maintained, 72-74. 
private property appropriated for, 126. B 
taxes levied and assessed for, 133, 163, 164. 
directors concur in sale of property, 171.J 

WRIT OF ERROR—to police court, 50. 


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